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)

WAGUTHU/1306, KIAMBAA/ WAGUTHU/1302 and LIMURU/ BIBIRIONI/2223 pending the hearing of the petition. 3. The application is supported by the Applicant’s Supporting Affidavit worn on even date. 4. In the said affidavit she has stated that she is the heir and beneficiary of the estate of Noah Karuga Koinange. The suit properties which are currently registered in the name of Wilfred Koinange Gathoni were sub-divided from parcels number KIAMBAA/ WAGUTHU/532, KIAMBAA/ WAGUTHU /461 LIMURU/BIBIRIONI/623 which were registered in the name of and the late Noah Karuga Koinange. 5. Vide an elder’s award which was adopted by the court, the said titles were sub-divided, amalgamated and/or transferred into the various suit properties. 6. It is the Applicant’s assertion that the elders panel lacked the requisite jurisdiction to either cancel, amalgamate , subdivide and transfer an interest in land in favour of one party at the expense of another party. 7. She adds that the land is of immense ancestral and economic value to her late father’s estate and any alienation would occasion irreparable loss. 8. She is of the view that the law recognizes the name on the title as the legal registered owner, who in this case in the late Noah Karuga THIKA ELC PETITION E021 OF 2025 (RULING) Page 2

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Koinange and one cannot pass a better title than that of the real owner. 9. The Applicant urges the court in order to intervene to preserve the suit properties. 10. In response to the Petition, the 1st Respondent filed a Notice of Preliminary Objection dated 1st November 2025 raising the following points: (a) That this being a land matter, it is already time-barred as the Petitioner has brought it long after the limitation period of 12 years. b) That the Petitioner is seeking for revocation and/or nullification of a judgment entered in 1984; that is to say 41 years later. c) The elders award and subsequent judgment were passed during the lifetime of the Petitioner’s father PAUL KARUGA KOINANGE yet he never contested the same prior to his death on 19th October 2011; that is to say 15 years after the said award and 27 years after the judgment. d) The Petitioner has not sought and/or obtained the leave of the Honourable Court to file this suit out of time. e) This is an attempt by the Petitioner to resurrect a matter that was laid to rest almost 27 years ago. f) That considering the above grounds, the application lacks merit and should be dismissed. g) That the application is not based on any law and section of the law. THIKA ELC PETITION E021 OF 2025 (RULING) Page 3

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11. The court directed that the Preliminary Objection be canvassed by way of written submissions and despite giving the parties timelines to file their submissions, only the Petitioner filed her submissions. ANALYSIS AND DETERMINATION 12. A Preliminary Objection, properly taken, is not a procedural flourish. It is a jurisdictional challenge founded upon a pure point of law. 13. As was stated in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696: a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. 14. The Supreme court of Kenya in Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) elaborated on the nature of a Preliminary Objection in the following terms: “It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.” 15. In essence, a preliminary objection cannot be sustained where the Court must first ascertain contested facts, interrogate evidence, or exercise discretion. Its province is narrow but decisive. It stands or falls on the assumption that the facts as pleaded are correct, and that only a pure question of law remains for determination. THIKA ELC PETITION E021 OF 2025 (RULING) Page 4

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16. In the instant case, the Preliminary Objection is based on the grounds that the suit is time barred as the Petitioner seeks to challenge the Elders’ award and subsequent judgment of the court entered in 1984, long after the limitation period of 12 years. It is further contended that the Petitioner did not seek leave of the court before filing the instant suit. 17. In order for the court to establish whether the suit is time barred, it would have to examine the previous proceedings to ascertain when they were filed and concluded. 18. Strictly speaking therefore, the Preliminary Objection does not meet the legal threshold. 19. That aside, the suit herein is commenced by way of a Petition alleging a violation of the Petitioner’s constitutional rights enshrined in Articles 10, 40, 47, 48, 50 and 159 of he Constitution of Kenya. 20. The Petitioner inter alia alleges that the 1 st Respondent has unlawfully and unprocedurally deprived the Petitioner and the estate of Noah Karuga Koinange the right to own and enjoy the properties known as KIAMBAA/ WAGUTHU/532, KIAMBAA/ WAGUTHU/461 and LIMURU/ BIBIRIONI/623 which have since been sub-divided to form land parcels KIAMBAA/WAGUTHU/1306, KIAMBAA/ WAGUTHU/1302 and LIMURU/ BIBIRIONI/2223. 21. The Petitioner further contends that the Respondents have unlawfully and through a corrupt scheme purported to cancel, subdivide and/or amalgamate and transfer an interest in the suit THIKA ELC PETITION E021 OF 2025 (RULING) Page 5

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properties to the late Wilfred Koinange Gathiomi who was not an heir to suit property nor a party to HCCC No. 66 of 1984. 22. In the Petition, she also challenges the jurisdiction of the panel of elders that adjudicated the matter resulting in an award that was void ab ignition. 23. As correctly submitted by the Petitioner, the statute of limitations doe not apply to illegalities, nullities or continuing violations of constitutional rights. 24. In the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 28 (KLR) the Supreme Court held that: “the passage of time does not legitimize an illegality nor can limitation statutes be used to shield unconstitutional acts. 25. Based on the above cited authority and given the fact that the Petitioner has questioned the constitutionality of the Respondents actions in dealing with the suit properties, it is my finding that that the Preliminary Objection is without merit. 26. Consequently, the Preliminary Objection dated 11 th November 2025 is hereby dismissed with costs to the Respondent. Dated, signed and delivered virtually at Thika this 28 th day of May 2026. THIKA ELC PETITION E021 OF 2025 (RULING) Page 6

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J. M ONYANGO JUDGE In the presence of: 1. Anastasia Wanjiku Petitioner, present in person. 2. No appearance for the Respondent. THIKA ELC PETITION E021 OF 2025 (RULING) Page 7

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