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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff's suit is statute barred under Section 7 of the Limitation of Actions Act
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.
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.
Whether the Plaintiff's suit is sub judice given Sotik PM ELC Case No. 9 of 2019
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.
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.
Who should bear costs
Costs follow the event under Section 27 of the Civil Procedure Act; the Defendant, having lost the preliminary objection, was ordered to pay costs.
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.
Legal principles established
#- 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
#- 1.The Defendant's Preliminary Objection dated 18th April, 2025 is dismissed
- 2.The Defendant to pay the Plaintiff's costs of the Preliminary Objection
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; not stated in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbita (Suing as the Administrator of Mole Mbita Angore Deceased) v Frann Investments Limited & 2 others; Kombe (Interested Party) (Environment and Land Case E063 of 2022) [2026] KEELC 2143 (KLR)[2026] KEELC 2143 (KLR)14 Apr 2026
- Mbita (Suing as the Administrator of Mole Mbita Angore Deceased) v Frann Investments Limited & 2 others; Kombe (Interested Party) (Environment and Land Case E063 of 2022) [2026] KEELC 2143 (KLR)[2026] KEELC 2143 (KLR)14 Apr 2026applied
Cite this brief
#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.