Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2026] KEELC 576 (KLR)

Mathenge v Attorney General (Environment and Land Case E482 of 2025) [2026] KEELC 576 (KLR)

Environment and Land Court
5 February 2026
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a land trespass claim is never too late to file as long as the trespass is still happening.

What this practically means

#

Executive summary

#
The plaintiff sued by plaint dated 22nd November 2024 alleging that the defendant acquired Industrial Plot No. 16 Gikomba without following the procedure for compulsory acquisition. He pleaded that he was allocated the plot in 1994 but the allotment was cancelled by the Commissioner of Lands in 1996 for construction of a road, and that the defendant then entered and constructed the road without observing compulsory acquisition procedures. He sought a declaration of ownership, an order that the defendant remove the road, restore the plot and issue him a title deed, or alternatively compensation of Kshs 40,000,000/=. The defendant filed a notice of preliminary objection contending that the suit offended section 7 of the Limitation of Actions Act, Cap 22, since the cause of action accrued on cancellation of the allotment in 1996. In submissions the defendant relied on Lengusuranga v Laniyara, arguing a 29-year delay; the plaintiff argued the claim sounded in continuing trespass, relying on County Government of Laikipia v Mburu and Kasinga v Kirui. Kullow J applied the Mukisa Biscuit threshold, held that limitation goes to jurisdiction and is a pure point of law properly raised, but found the claim was one in continuing trespass since the road still existed at the time of filing. Following Warrakah v Mwatsami and Muthiora v Kiara, the court held section 7 inapplicable to a continuing tort. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

#
01

Whether the suit is time barred under section 7 of the Limitation of Actions Act, Cap 22

Holding

The suit is not time barred because it is a claim in continuing trespass, not a claim for recovery of land; limitation does not apply.

Reasoning

The court examined the prayers in the plaint and found the plaintiff primarily sought removal of a road constructed on the plot, grounding the claim on unlawful occupation. Since the road constructed in 1996 still existed at the time of filing, the trespass was a continuing one. Following Court of Appeal authority, a claim based on continuing trespass is a continuing tort not governed by section 7, so the cause of action kept accruing as long as the trespass persisted.

p. 3
02

Whether the preliminary objection was properly raised as a pure point of law

Holding

Yes; limitation goes to jurisdiction and can dispose of the suit without ascertaining facts, satisfying the Mukisa Biscuit threshold.

Reasoning

The court applied the Mukisa Biscuit test that a preliminary objection is a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and Oraro v Mbaja on its nature. Relying on Bosire Ongero v Royal Media Services, the court held that whether a suit is time barred is a pure point of law going to jurisdiction, so the objection was properly and validly taken even though it ultimately failed on its merits.

p. 2

Legal principles established

#
  • A claim founded on continuing trespass is a continuing tort and is not barred by section 7 of the Limitation of Actions Act, which applies only to actions for recovery of land
  • If a suit is statute barred on account of limitation, the court lacks jurisdiction to entertain it, making limitation a proper point of law for a preliminary objection

Court orders

#
  1. 1.The Defendant's notice of preliminary objection is not merited and is hereby dismissed
  2. 2.Costs to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (article 162(2)(b) of the Constitution, as inferred from the subject matter); the judgment itself does not expressly invoke a provision.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mathenge v Attorney General (Environment and Land Case E482 of 2025) [2026] KEELC 576 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/576/eng@2026-02-05

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