Sawe v Waithaka & 3 others (Environment and Land Case E051 of 2024) [2025] KEELC 6777 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a 1996 land claim can proceed because constructive trust claims are not blocked by limitation periods.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukhisa Biscuit threshold
It did meet the threshold, being raised on pure points of law (limitation), though the constructive trust element requires judicial discretion and falls outside a proper preliminary objection.
The court accepted that limitation of actions touches on jurisdiction and that the objection was premised on sections 4 and 7 of the Limitation of Actions Act. However, constructive trust is implied from the circumstances of each case, entailing the exercise of judicial discretion, which cannot be determined on a preliminary objection.
Whether the plaintiff's suit is time-barred under sections 4 and 7 of the Limitation of Actions Act
No. Although the genesis of the claim is the 1996 sale agreement, the claim also rests on constructive trust, which is excepted under section 20(1)(b) and therefore not barred.
The court found from paragraphs 17–19 of the plaint that the plaintiff pleaded the doctrine of trust against the 1st defendant as administrator of the vendor's estate and against the 2nd and 3rd defendants. Guided by Musekenya v Kortom, the court held such a claim is excepted under section 20(1)(b) and cannot be time-barred under section 7.
Legal principles established
#- A preliminary objection can only be raised on a pure point of law, on the assumption that all facts pleaded are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
- A claim founded on constructive trust falls within the exception in section 20(1)(b) of the Limitation of Actions Act and is not time-barred under section 7.
Court orders
#- 1.The Notice of Preliminary Objection dated 29th April, 2025 is struck out
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the ELC Act; suit filed 19.08.2024 (specific provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sawe v Waithaka & 3 others (Environment and Land Case E051 of 2024) [2025] KEELC 6777 (KLR)", Case Analysis (2025). Not stated in excerpt (ELC, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6777/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.