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ELCDismissedNot stated in the extract· [2025] KEELC 7096 (KLR)

Bor (Suing as legal representative of the Estate of Michael Kiptonui Kurgat) v Ruto (Being sued as legal representative of the Estate of Laurent Nyokosei A Soi) (Land Case E023 of 2025) [2025] KEELC 7096 (KLR)

Environment and Land Court
16 October 2025
4,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kericho land court ruled that time-bar and duplication arguments need evidence, so the family's land dispute will proceed to a full trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Preliminary Objection dated 18th April, 2025 raised by the Defendant against the Plaintiff's suit. The Plaintiff, claiming through the estate of his deceased father Michael Kiptonui Kurgat, sought cancellation of titles to LR Kericho/Cheplelwa/131-136 (subdivided from Plot 50), a declaration that the estate is entitled to 28.5 acres, an order compelling the Director of Land Adjudication to subdivide and transfer that portion to the estate, a permanent injunction, general damages, costs and interest. The Defendant objected on three grounds: that the suit is time barred under Section 7 of the Limitation of Actions Act; that it is sub judice given Sotik PMC ELC Suit No. 9 of 2019 filed by the Plaintiff's deceased father; and that the Court lacks jurisdiction over a time-barred suit. The Plaintiff opposed, arguing the claim is founded on fraud (invoking Section 26 of the Limitation of Actions Act), that his family has been in possession, that the earlier Sotik suit was dismissed for want of prosecution and for lack of jurisdiction, and that the objection raises factual issues not pure points of law. The Court framed three issues: whether the suit is statute barred; whether it is sub judice; and costs. Relying on Oraro v Mbaja as approved in Ushago Diani Investment Limited v Abdulwahab, Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi, Oruta & Another v Nyamato, Cyrus Mucebiu Irungu v Martha Wanjiru Irungu and Margaret Wachu Karuri v John Waweru Ribiro, the Court held that both limitation and sub judice require ascertainment of facts and evidence and are not pure points of law capable of resolution as preliminary objections. The Court dismissed the Preliminary Objection with costs.

Key legal issues

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01

Whether the Plaintiff's suit is statute barred under Section 7 of the Limitation of Actions Act

Holding

The issue of limitation cannot be determined by way of preliminary objection where the claim is anchored on fraud and the date of the alleged fraudulent transfer is not evident from the pleadings; it must be determined at the trial on evidence.

Reasoning

The Plaintiff's claim is anchored on allegations of fraudulent transfer of the suit parcel, and it is not evident from the pleadings when the alleged fraudulent transfer took place. Determination of limitation requires ascertainment of facts through evidence, especially where the date the cause of action accrued is disputed. Following Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi and Oruta & Another v Nyamato, limitation is a matter for trial.

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Whether the Plaintiff's suit is sub judice given Sotik PM ELC Case No. 9 of 2019

Holding

Sub judice cannot be raised as a preliminary objection because determining it requires ascertaining facts and probing evidence in the earlier suit; the earlier suit was in any event dismissed for want of prosecution.

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit still pending. Here the Plaintiff admits the earlier Sotik suit was filed by his father but it was dismissed for want of prosecution after his death and was held to be filed in a court lacking jurisdiction. Whether two suits involve the same issues requires factual inquiry, so it is not a pure point of law.

p. 9
03

Who should bear costs

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the Defendant, having lost the preliminary objection, was ordered to pay costs.

Reasoning

The general rule is that costs shall follow the event in accordance with Section 27 of the Civil Procedure Act. A successful party should ordinarily be awarded costs unless the Court, for good reason, directs otherwise. The Plaintiff succeeded in resisting the preliminary objection and was therefore awarded costs.

p. 9

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained or evidence adduced.
  • The defence of limitation of time is a matter for determination at the trial on evidence, not by way of preliminary objection.
  • The question of sub judice requires the Court to ascertain facts and probe evidence and is not a pure point of law capable of being raised as a preliminary objection.

Court orders

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  1. 1.The Defendant's Preliminary Objection dated 18th April, 2025 is dismissed
  2. 2.The Defendant to pay the Plaintiff's costs of the Preliminary Objection

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 9, 13 and 18
  • Limitation of Actions ActSection 26
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 27(1)

Cases cited (13)

  • Bosire Ongero versus Royal Media Service
    [2015] eKLR
  • Alba Petroleum Limited versus Royal Media Services
    [2015] eKLR
  • Republic versus Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya
    [2020] eKLR
  • Leonard Omullo versus National Land Commission
    [2021] eKLR
  • Mukisa Biscuit Manufacturing Co. ltd v West End Distributors Ltd
    [1969] EA 696
  • Lemitei Ole Koros & another v Attorney General & 3 Others
    [2016] eKLR
  • Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 Others
    [2020] eKLR
  • Ushago Diani Investment Limited v Abdulwahab
    (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) (Ruling)
  • Oraro v Mbaja
    [2005] eKLR 141
  • Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi
    [2019] KEHC 2521 (KLR)
  • Oruta & Another vs. Nyamato
    [1998] KLR 590
  • Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another
    [2022] KEELC 810 (KLR)
  • Margaret Wachu Karuri v John Waweru Ribiro
    [2021] KEELC 2793 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; not stated in the extract

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bor (Suing as legal representative of the Estate of Michael Kiptonui Kurgat) v Ruto (Being sued as legal representative of the Estate of Laurent Nyokosei A Soi) (Land Case E023 of 2025) [2025] KEELC 7096 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7096/eng@2025-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.