Kenneth & another (Both Suing as Legal Representatives and Beneficiaries of the Estate of the Late Joel Kiprotich Kiget) v Kositany (Sued as Guardian Ad Litem of John Kositany) & 2 others (Environment and Land Case E011 of 2026) [2026] KEELC 3300 (KLR)

Factual Background. 2. The Plaintifis commenced the present proceedings vide the Plaint dated 21st March, 2019 wherein they seek the following orders; a. A declaration that the cancellation of the name of the deceased in the parcel No. Kericho/Kapsimbiri/814 and both registrations of Tittles, (sic) Kericho/Kapsimbiri/1062 and Kericho/Kapsimbiri/1063 in the register is illegal, null, void and fraudulent and the registration should be cancelled. b. A declaration that that (sic) registration of the 1st Defendant in a property belonging to the deceased person, intestate, without complying with the land law as to obtain his consent and consent from land control board is a fraud hence the register should be rectified to reinstate the name of Daniel Kositany Kilel. (sic) c. An order of mandamus compelling the 2nd Defendant to rectify the register and reinstate the name of the deceased Daniel Kositany Kilel. d. Costs of this suit and interest thereon. e. Any other such relief as this Honourable Court may deem appropriate. 3. The 1st Defendant filed a Statement of Defence dated 7th May, 2019 wherein he denies the averments in the Plaint and seeks that the Plaintifis suit be dismissed with costs. 4. The 2nd and 3rd Defendants entered appearance and as at the time of writing of this ruling, they have not filed their Statement of Defence. 5. On 28th January, 2026 the Court issued directions that the Preliminary Objection shall be heard by way of written Submissions. 6. On 25th February, 2026, the matter was mentioned to confirm filing of submissions and on 19th March, 2026 it was reserved for ruling. Issues for Determination. 7. The 1st Defendant filed submissions on 17th February, 2026 while the Plaintifis and the 2nd and 3rd Defendants did not file submissions. 8. The 1st Defendant relies on the judicial decision of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors (1969) EA 696 and submits on the following issues; 9. a. Whether the Plaintifis have the requisite locus standi to institute this suit. b. Whether this suit is time barred. c. Whether this suit should be dismissed. d. Who should bear the costs of the suit, if dismissed. On the first issue, the 1st Defendant submits that the Plaintifis are the legal representatives of the estate of Joel Kiprotich Kiget (Deceased) but they appear to be litigating on behalf of the estate of Daniel Kositany Kilel (Deceased). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28 2

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10. The 1st Defendant also submits that the prayers sought in the Plaint are on behalf of Daniel Kositany Kilel (Deceased) and yet the Plaintifis are not the legal representatives of his estate. 11. The 1st Defendant relies on the judicial decision of Nancy Wamaitha Muriithi & another vs Loise Wanjiru [2015] eKLR and submits that the Plaintifis have not demonstrated that they have capacity to sue on behalf of the estate of Daniel Kositany Kilel (Deceased). 12. The 1st Defendant further submits that the Plaintifis do not therefore have the locus standi to commence the present proceedings and their suit should be struck out. 13. On the second issue, the 1st Defendant submits that the Plaintifis are seeking to nullify a transaction that was registered on 26th February, 1993. 14. It is the 1st Defendant’s submissions that in her witness statement, the 2nd Plaintifi states that she informed her husband about the said transaction in January, 1994. 15. It is also the 1st Defendant’s submissions that the 2nd Plaintifi filed a suit in the year 2012 and sought that land parcel No. Kericho/Kapsimbiri/1062 be registered in her name. 16. It is further the 1st Defendant’s submissions that the Plaintifis have always been aware of the said transaction since the year 1993. 17. The 1st Defendant submits that the present suit was filed on 5th April, 2019 which was twenty-six years after the cause of action arose. 18. The 1st Defendant relies on Sections 7 and 26 of the Limitation of Actions Act, the judicial decision of Sohanlaldurgadass Rajput & another v Divisional Integrated Development Programmes Co Ltd [2021] eKLR and submits that the present suit is time barred. 19. The 1st Defendant concludes his submissions by urging the Court to allow the Preliminary Objection and dismiss the Plaintifis suit with costs. Analysis and Determination. 20. I have considered the 1st Defendant’s Preliminary Objection and submissions. It is my view that the following issues arise for determination; a. Whether the Plaintifis have locus standi to commence the present proceedings. b. Whether the suit is statute barred. c. Who should bear costs of the Preliminary Objection. A. Whether the Plaintifis have locus standi to commence the present proceedings. 21. The judicial decision of Ushago Diani Investment Limited v Abdulwahab (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) (Ruling) cited with approval Oraro v Mbaja [2005] eKLR 141 where the Court held as follows on the nature of preliminary objections; “ A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28 3

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be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” (Emphasis mine) 22. A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained. Further, a preliminary objection must stem from the proceedings and raise pure points of law and should not deal with disputed facts nor should it derive its foundation from factual information. 23. The 1st Defendant submits that the Plaintifis have commenced the present proceedings in their capacity as legal representatives of the estate of Joel Kiprotich Kiget (Deceased). This is correct. 24. The 1st Defendant also submits that the prayers sought in the Plaint are seeking to enforce the rights of the estate of Daniel Kositany Kilel (Deceased). This is also correct. 25. The 1st Defendant further submits that the Plaintifis are not the legal representatives of Daniel Kositany Kilel (Deceased) and they therefore do not have the locus standi to sue on behalf of his estate. This is a question of fact which this Court cannot establish at this stage. 26. The Court of Appeal in Njau & 5 others v City Council of Nairobi [1983] KECA 56 (KLR) held as follows; “ The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.” (Emphasis mine) 27. In the Plaint, the Plaintifis aver that they are the legal representatives of the estate of Joel Kiprotich Kiget (Deceased). 28. The Plaintifis also aver that Joel Kiprotich Kiget (Deceased) was one of the sons of Daniel Kositany Kilel (Deceased) and he resided on land parcel No. Kericho/Kapsimbiri/1062. 29. The Plaintifis further aver that Daniel Kositany Kilel (Deceased) was the registered owner of land parcel No. Kericho/Kapsimbiri/814. 30. It is the Plaintifis averment that land parcel No. Kericho/Kapsimbiri/814 was fraudulently subdivided by the 1st Defendant in collusion with the 2nd Defendant into land parcel No’s Kericho/ Kapsimbiri/1062 and 1063. 31. It is also the Plaintifis averment that land parcel No. Kericho/Kapsimbiri/1063 was registered in the name of John Kiplangat Kositany, the 1st Defendant. 32. It is further the Plaintifis averment that the title deeds for land parcel No’s Kericho/Kapsimbiri/1062 and 1063 should be cancelled and the title reverts back to Kericho/Kapsimbiri/814. 33. The prayers sought in the Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; a. A declaration that the cancellation of the name of the deceased in the parcel No. Kericho/Kapsimbiri/814 and both registrations of Tittles, (sic) Kericho/Kapsimbiri/1062 and Kericho/Kapsimbiri/1063 in the register is illegal, null, void and fraudulent and the registration should be cancelled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28 4

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b. A declaration that that (sic) registration of the 1st Defendant in a property belonging to the deceased person, intestate, without complying with the land law as to obtain his consent and consent from land control board is a fraud hence the register should be rectified to reinstate the name of Daniel Kositany Kilel. (sic) c. An order of mandamus compelling the 2nd Defendant to rectify the register and reinstate the name of the deceased Daniel Kositany Kilel. d. Costs of this suit and interest thereon. e. Any other such relief as this Honourable Court may deem appropriate. 34. As submitted by the 1st Defendant, it is evident that in the averments in the Plaint and the prayers sought therein, the Plaintifis are seeking orders with respect to the estate of Daniel Kositany Kilel (Deceased). 35. While it is true that the question whether a person has a right to appear or be heard in proceedings is a question of law it requires documentary evidence i.e. A Grant of letters of administration. 36. This suit has not been heard and it is not possible for this Court to tell what other documents the Plaintifis intend to file in support of their case and/or how they intend to prove their claim. It is only reasonable that they are ofiered opportunity to do so before a determination can be made on whether or not they lack capacity to institute or sustain this suit. 37. I find that the objection on Locus standi has come a little too early. B. Whether the suit is statute barred. 38. The 1st Defendant contends that the Plaintifis suit is statute barred and it ofiends Section 7 of the Limitation of Actions Act. 39. The 1st Defendant submits that the course of action arose in the year 1993 and the present suit was filed on 5th April, 2019 which was after twenty-six years had lapsed. 40. The 1st Defendant also submits that the suit is therefore statute barred and should be dismissed with costs. 41. Section 7 of the Limitation of Actions Act provides as follows; “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 42. In Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] eKLR the Court held as follows; “ 13. The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The Court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28 5

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On this see the case of Oruta & Another vs. Nyamato [1998] KLR 590, where the Court held that limitation of action:“…could only be queried at the trial but not by…a preliminary objection…The appellant could raise the objection at the trial and the trial Judge would have to deal with the matter on the evidence to be adduced at the trial’’ 14. See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997, where the Court quoted with approval the words of Gachuhi, J.A., the leading Judge in the Oruta case (ibid) that: “It will be up to the Judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintifi to be struck out is not encouraged by the Limitation of Actions Act…” (Emphasis mine) 43. As was held in the above cited judicial decision, the defence of limitation of time can only be determined at the trial and cannot be dealt with as a preliminary objection. This is because the determination of the issue of limitation of time requires the Court to ascertain facts which can only be done by interrogating evidence. C. Who should bear costs of the Preliminary Objection. 44. The general rule is costs shall follow the event. This in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 45. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 46. Taking the foregoing into consideration, I find that the 1st Defendant’s Preliminary Objection lacks merit and I hereby dismiss it with costs. 47. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 28TH DAY OF MAY, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Langat for the 1st Defendant. Mr. Koko for the Plaintifis. Mr. Makori - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28 6

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