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ELCOtherThika ELC Petition E021 of 2025· [2026] KEELC 3441 (KLR)

Wanjiru (Suing on behalf of the Estate of Noah Karuga Koinange) v Kariuki (Executor of the Estate of Wilfred Koinange Gathiomi) & another (Environment and Land Petition E021 of 2025) [2026] KEELC 3441 (KLR)

Environment and Land Court
28 May 2026
1,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled an old land claim alleging illegality can proceed despite 41 years passing, since limitation law cannot shield unconstitutional acts.

What this practically means

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Executive summary

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The Petitioner, Anastasia Wanjiku, describing herself as heir and beneficiary of the estate of Noah Karuga Koinange, moved the Environment and Land Court at Thika by a Notice of Motion dated 27th October 2025 seeking an injunction and an order of inhibition restraining dealings with KIAMBAA/WAGUTHU/1306, KIAMBAA/WAGUTHU/1302 and LIMURU/BIBIRIONI/2223 pending the hearing of her petition. She contends that these parcels were sub-divided from land registered in her late father's name pursuant to an elders' award adopted in HCCC No. 66 of 1984, and that the panel of elders lacked jurisdiction to cancel, amalgamate, sub-divide and transfer land, rendering the award a nullity and the Respondents' dealings a violation of Articles 10, 40, 47, 48, 50 and 159 of the Constitution. The 1st Respondent filed a Notice of Preliminary Objection dated 1st November 2025 arguing that the suit is time-barred under the 12-year limitation period, that it seeks to nullify a 1984 judgment some 41 years later, and that no leave to file out of time was obtained. The court, applying the Mukisa Biscuit test as elaborated in IEBC v Cheperenger, held that the objection did not meet the threshold of a pure point of law because establishing limitation would require examination of previous proceedings. Relying on Dina Management Limited v County Government of Mombasa, the court further held that limitation does not apply to illegalities, nullities or continuing violations of constitutional rights. The Preliminary Objection was dismissed, with costs stated to be to the Respondent. The interlocutory application awaits determination at the hearing of the petition.

Key legal issues

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01

Whether the Preliminary Objection met the threshold of a pure point of law

Holding

The Preliminary Objection did not meet the legal threshold because determining whether the suit was time-barred would require examination of previous proceedings, i.e. contested facts

Reasoning

The court applied the Mukisa Biscuit test and the IEBC v Cheperenger formulation: a preliminary objection stands on a pure point of law applied to undisputed facts. Since establishing whether the suit was time-barred would require examining when the prior proceedings were filed and concluded, the objection could not be sustained as a preliminary matter.

p. 5
02

Whether limitation bars a constitutional petition alleging illegality and violation of constitutional rights

Holding

Limitation does not apply to illegalities, nullities or continuing violations of constitutional rights; the Preliminary Objection was without merit

Reasoning

The Petitioner alleged that the Respondents' dealings with the suit properties were unlawful, unprocedurally done and through a corrupt scheme, and that the elders' panel lacked jurisdiction. Relying on Dina Management Limited v County Government of Mombasa, the court held that time does not legitimize an illegality and limitation statutes cannot shield unconstitutional acts, so the objection failed.

p. 6

Legal principles established

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  • A preliminary objection must be founded on a settled and crisp point of law whose application to undisputed facts leads to only one conclusion
  • A preliminary objection cannot be sustained where the court must first ascertain contested facts or interrogate evidence
  • The statute of limitations does not apply to illegalities, nullities or continuing violations of constitutional rights

Court orders

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  1. 1.The Preliminary Objection dated 11th November 2025 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Respondent
Jurisdiction invoked
Article 165(2) of the Constitution of Kenya (Environment and Land Court), suit brought as a constitutional petition alleging violation of Articles 10, 40, 47, 48, 50 and 159

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, "Wanjiru (Suing on behalf of the Estate of Noah Karuga Koinange) v Kariuki (Executor of the Estate of Wilfred Koinange Gathiomi) & another (Environment and Land Petition E021 of 2025) [2026] KEELC 3441 (KLR)", Case Analysis (2026). Thika ELC Petition E021 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3441/eng@2026-05-28

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