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ELCDismissed· [2026] KEELC 671 (KLR)

Komen v Yator (Environment and Land Case E002 of 2025) [2026] KEELC 671 (KLR)

Environment and Land Court
11 February 2026
1,474 words in judgment
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The bottom line

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An Eldoret court ruled that land claims based on trust cannot be thrown out as time-barred, and dismissed the defendant's attempt to strike out the suit.

What this practically means

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Executive summary

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The Defendant (Applicant) filed a Notice of Preliminary Objection dated 27.05.2025 seeking the striking out of the Plaintiff's (Respondent's) Plaint dated 20.01.2025, together with costs, on the ground that the cause of action was time barred under Section 7 of the Limitation of Actions Act, Cap 22. The Defendant contended that he was registered as owner of the suit property, LR No. Kiplombe/Kiplombe Block 10 (Growel)/165, on 16.03.2004, and that 21 years had elapsed without suit being brought, extinguishing the cause of action. The Court framed three issues: whether the suit was time barred, whether the preliminary objection was merited, and costs. Applying Mukhisa Biscuits v Westend Distributors, the Court held that a preliminary objection must rest on a pure point of law on assumed facts; here the pleaded facts were at variance, requiring ascertainment at trial. On the limitation question, the Court observed that the Respondent pleaded the Defendant held the property in trust, so the cause of action sounded in breach of trust. Relying on Section 20(1) of the Limitation of Actions Act and the Court of Appeal decision in Stephens v Stephens, it held that no limitation period applies to a beneficiary's action to recover trust property converted by a trustee. The preliminary objection was therefore found unmerited and dismissed, with the Defendant condemned to pay the Plaintiff's costs. Judgment was delivered in Eldoret on 11 February 2026 by Emmanuel M. Washe, Judge.

Key legal issues

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01

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

The limitation ground fails because the cause of action is founded on breach of trust, and Section 20(1) of the Act excludes limitation periods for such actions.

Reasoning

The Court noted the Respondent pleaded that the Defendant was registered as owner of the suit property in trust, meaning the cause of action is based on the doctrine of trust. Section 20(1)(b) of the Limitation of Actions Act provides that no limitation period applies to a beneficiary's action to recover trust property converted by the trustee. The Court applied Stephens v Stephens, endorsing the policy that a defaulting fiduciary should not be shielded by a time bar. The 12-year period under Section 7 was therefore inapplicable.

p. 3
02

Whether the Defendant's preliminary objection merited

Holding

The preliminary objection is not merited and is dismissed.

Reasoning

Applying the Mukhisa Biscuits principles, a preliminary objection must rest on a pure point of law assuming the pleaded facts are correct. Here, the facts pleaded in the Plaint and the Defence and Counter-Claim are at variance and controverted, requiring the Court to ascertain them at trial. Additionally, the limitation ground is defeated by Section 20(1) since the claim is founded on trust. The PO therefore fails on both grounds.

p. 3
03

Who shall bear the costs of the PO

Holding

The Applicant (Defendant) is condemned to pay costs to the Respondent.

Reasoning

Having found the preliminary objection unmerited, the Court applied the ordinary rule that costs follow the event. The unsuccessful Applicant was ordered to pay the Respondent's costs of the preliminary objection.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts require ascertainment or judicial discretion.
  • No period of limitation applies to an action by a beneficiary under a trust to recover trust property from a trustee who converted it to his use.

Court orders

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  1. 1.The Preliminary Objection dated 27.05.2025 is not merited and therefore dismissed forthwith.
  2. 2.The Applicant is condemned to pay costs to the Respondent.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Komen v Yator (Environment and Land Case E002 of 2025) [2026] KEELC 671 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/671/eng@2026-02-11

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