Sang & another v Choge & 5 others (Environment & Land Petition E004 of 2024) [2025] KEELC 3367 (KLR)
The bottom line
#Kenya's Eldoret land court struck out a 2024 petition over land dealings dating back to 2000, because the 12-year legal deadline to sue had long expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
Grounds 1–5 involved contested factual issues requiring evidence and thus could not stand as preliminary objections.
The court applied Mukisa Biscuit and Oraro v Mbaja: a preliminary objection must raise a pure point of law without disputed facts. Grounds on functus officio, locus standi, res judicata and authority to plead all required probing of evidence and rival factual contentions, so they failed the threshold.
Whether the petition is time barred under section 7 of the Limitation of Actions Act
The cause of action accrued in 2000 as pleaded by the petitioners themselves; 12 years had lapsed and the petition is time barred.
Limitation touches on jurisdiction. On the petition's own pleadings, the impugned surrender form was executed on 25/2/2000 and the complaints of irregular allocation arose then; section 7 bars actions to recover land after 12 years, so the claim was statute barred.
Whether the petition met the threshold of a constitutional petition
It did not; Articles 10 and 47 breaches were alleged generally, and the claim is a private law land dispute.
Applying Anarita Karimi Njeru and the Mumo Matemu principle, the petitioners failed to plead with precision the constitutional provisions infringed. The relief sought — cancellation of titles — is a private law claim that should be pursued through ordinary litigation or appeal, not a constitutional petition.
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.
- Res judicata cannot properly be raised as a preliminary objection where ascertainment of facts is required.
- A constitutional petition must particularise with precision the provisions infringed and the manner of infringement.
- Private law claims should not be clothed as constitutional petitions.
Court orders
#- 1.Grounds (1), (2), (3), (4) and (5) of the preliminary objection dismissed.
- 2.Notice of Preliminary Objection allowed to the extent that the claim is time barred and the petition does not meet the threshold of a proper constitutional petition.
- 3.Petition dated 6th June, 2024 and the Notice of Motion of even date struck out with costs to the 1st–4th Respondents.
- Jurisdiction invoked
- Constitution of Kenya, Article 22 (constitutional petition; jurisdiction not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang & another v Choge & 5 others (Environment & Land Petition E004 of 2024) [2025] KEELC 3367 (KLR)", Case Analysis (2025). Petition dated 6th June, 2024 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3367/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.