Mathenge v Attorney General (Environment and Land Case E482 of 2025) [2026] KEELC 576 (KLR)
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
#Key legal issues
#Whether the suit is time barred under section 7 of the Limitation of Actions Act, Cap 22
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.
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.
Whether the preliminary objection was properly raised as a pure point of law
Yes; limitation goes to jurisdiction and can dispose of the suit without ascertaining facts, satisfying the Mukisa Biscuit threshold.
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.
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.The Defendant's notice of preliminary objection is not merited and is hereby dismissed
- 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.