Kisang (Suing as the Legal Administrator of the Estate of the Late Isaiah Kibabii Mogin) v County Government of Elgeyo Marakwet & 4 others (Petition E006 of 2024) [2025] KEELC 5480 (KLR) (26 June 2025) (Ruling)
Neutral citation:
[2025] KEELC 5480 (KLR)
Republic of Kenya
Petition E006 of 2024
L Waithaka, J
June 26, 2025
IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTALL RIGHTS AND FREEDOMS UNDER ARTICLES 10,20,22,27,40,47,46,59,67,69 AND 70 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF LANDS ACT 2012ANDIN THE MATTER OF UNLAWFUL ACQUISITION OF PRIVATE LAND AT KAPSOWAR ELGEYO MARAKWET COUNTY
Between
Moses Kipkorir Kisang (Suing as the Legal Administrator of the Estate of the Late Isaiah Kibabii Mogin)
Petitioner
and
The County Government of Elgeyo Marakwet
1st Respondent
Trustees of African Inland Church of Kenya
2nd Respondent
National Land Commission
3rd Respondent
The Chief Land Registrar Elgeyo Marakwet County
4th Respondent
The Attorney General
5th Respondent
Ruling
Introduction
1.Before me for determination is the preliminary objection dated 14th March, 2025. Through the preliminary objection, the 1st respondent seeks to strike out the petition dated 9th December, 2024 on two grounds. First, that the petition does not disclose the provisions of the constitution that have been infringed or likely to be infringed contrary to Rule 10[2] of the constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 and as such does not meet the threshold of a constitutional petition as set out in the locus classicus case of Anarita Karimi Njeru v Republic [1979] eKLR. Secondly, that the petition is statutorily time barred offending the provisions of the Limitation of Actions Act.
2.Pursuant to directions given on 24th March 2025, the preliminary objection was disposed of by way of written submissions.
Submissions
The 1st and 3rd Respondents’ submissions
3.The 1st respondent filed submissions on 9th April, 2025 while the 3rd respondent filed theirs on 28th May, 2025. Cumulatively, the 1st and 3rd respondents identified the following issues for the court’s determination:i.Whether the preliminary objection meets the requisite threshold;ii.Whether the petition raises any constitutional issuesiii.Whether the petition is time barred.
4.On whether the preliminary objection meets the requisite threshold, the respondents cited the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, JSK v WKW [2019] eKLR and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eklr to illustrate the requisite threshold and the tests that ought to be satisfied for a preliminary objection to succeed. They submitted that the preliminary objection raises two pure points of law. Firstly, that the petition offends the provisions of the Limitation of Actions Act and secondly that the petition does not disclose the provisions of the constitution that have been infringed or are likely to be infringed contrary to Rule 10[2] of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013.
5.On whether the petition raises any constitutional issues, they submitted that the issues raised in the petition are for an ordinary land claim that can be determined under the relevant statutes and not under constitutional litigation. It is their case that the principle of constitutional avoidance holds that where it is possible to decide a case without reaching a constitutional issue, it should be done as an ordinary claim. They cited the cases of Republic v Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya limited, Sports Recreation Commission v Sagittarius Wrestling Club and Anor and KKB v SCM & 5 others [Constitutional Petition 014 of 2020] [2022] which relied on the case of S v Mhlungu 1995 [3] SA 867 [CC] 59.
6.They further submitted that in a constitutional petition, the particular rights and details of the alleged infringement and/or violations must be made clear, a position adopted in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR.
7.They submitted that in the petition before the court, the petitioners’ allegations of violation of their constitutional rights are unfounded and without basis as the petitioner has not demonstrated that his rights under Article 40 and 47 of the constitution have been violated so as to successfully seek compensation on the basis of violation of constitutional rights. He has not clearly specified the constitutional provisions violated and the manner that they were violated by the respondents’ action. It is their submission that the petition has not met the threshold for constitutional petitions as set out in Anarita Karimi Njeru v Republic [1979] Eklr.
8.On whether the petition is time barred, they submitted that under Section 7 of the Limitations of Actions Act Cap 22, computation of the limitation period commences at the time the cause of action arises. From his pleadings, the suit properties were compulsorily acquired by the 1st respondent in 1972, therefore the suit was brought after 52 years ago and is therefore time barred. They relied on the case of Dickson Ngige Ngugi v Consolidated Bank Ltd & another [2020] eklr and Section 3[1] of the Public Authorities Limitation Act.
9.They further submitted that the petitioner has not stated the reasons that led to delay in instituting the instant suit. To buttress their point, they placed reliance on the cases of Mombasa Civil Case No. 128 of 1962, Rawal v Rawal [1990] KLR 275, Abraham Kaisha Kanzila alias Moses Savala Keya t/a Kapco Machinery Services and Milamo investments limited v Government Central Bank of Kenya and 2 others Misc. Civil Application 1759 of 2004 and James Kanyita Nderitu v A.G and Another Petition No. 180 of 2021, Johnstone Ogechi v National Police Service [2017] eKLR, Section 4[2] of the Law of Limitation Act and Peter Ngari Kagume & others v Attorney General [2009] eKLR.
10.The 2nd respondent did not file submissions and if it did, the same were not placed in the court file.
11.The 4th and 5th respondents informed the court that they were supporting the preliminary objection and would not file submissions.
Petitioner’s submissions
12.The petitioner opposed the preliminary objection vide the submissions filed on 29th April, 2025 and identified one issue for court’s determination; whether the preliminary objection raises a pure point of law as established in Mukisa Biscuit Case.
13.He submitted that the preliminary objection is fatally flawed, raises no pure points of law, is premature, an abuse of the court process and has failed the threshold established. He submitted that the preliminary objection revolves around the sufficiency of the pleadings and whether the claim is time barred which issues are not pure points of law as the court will be required to establish when the cause of action arose and whether the violations are continuous in nature.
14.He further submitted that the petition discloses constitutional violations such as the conduct of the respondents, nature of the land, history of occupation, absence of compensation, when the cause of action arose and whether the violations were continuous in nature as required under rule 10 [2] of Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 and Anarita Karimi Njeru v Republic case. Further, the petition outlines clear factual allegations of illegal compulsory acquisition of ancestral land by public institutions, failure to follow constitutional and statutory procedures for compulsory acquisition, lack of written notice and absence of fair compensation which are substantive constitutional questions.
15.On whether the petition is statute barred, the petitioner admits that is time barred, but submits that the argument of time bar, misconstrues the nature of constitutional litigation as constitutional violations especially those concerning fundamental rights and freedoms are not strictly bound by statutory limitations periods especially where there is a continuing violation or breach. He cited the case of AG v Andrew Maina Githinji [2016] KECA 817 [KLR], where the court affirmed that limitation of time does not apply where the actions complained of are ongoing or involve continued breach of fundamental rights as is the case in this petition because the petitioner and his family continue to face threats of invasion, tree felling and development of their ancestral land.
16.He submitted that the 1st respondent’s preliminary objection has failed the test set out in the Mukisa Biscuit case as it invites the court to interrogate contested facts, including the history of the land ownership, the legality of the acquisition process and whether compensation was offered.
17.It is their contention that courts have since evolved from the decision of Anarita Karimi Njeru v Republic to the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR where it was held:
Analysis and determination
18.The Preliminary objection by the 1st respondent is premised on the grounds that the petition does not disclose the provisions of the constitution that have been infringed or likely to be infringed and that the petition is statutorily time barred offending the provisions of the Limitation of Actions Act.
19.The legal principles that undergird a Preliminary objection were espoused in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, supra, thus; -
20.On whether the petition discloses the provisions of the constitution that have been infringed or likely to be infringed, I am guided by the following cases; Anarita Karimi Njeru vs Republic [1979] eKLR, Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR cited by the parties and David Gathu Thuo vs Attorney General & Another [2021] eKLR as quoted in the case of Kadege v OCS Kilingili Police Station & 2 others [Constitutional Petition 5 of 2022] [2024] KEHC 9176 [KLR] [30 July 2024] [Judgment] where the court held;-
21.I have considered the petition and there is lack of clarity in the manner it is drafted. The petitioner has merely citied the articles in the constitution allegedly infringed but has not expounded on any of the articles. The petitioner has also failed to provide sufficient particulars of the alleged infringement of the Constitutional provisions. There is ambiguity on what the respondents have done to constitute infringement of the petitioner’s rights in relation to the articles cited and there is generalization in the alleged constitutional violations. On particulars of the illegality and unconstitutionality by the respondents, none were listed for the 4th and 5th respondents. In the case of Kadenge supra, the court dismissed the petition for not meeting the threshold. Similarly, in the case of Meru Cultural Center & 17 others v Kisima Farm Limited & 24 others [Constitutional Petition E006 of 2022] [2023] KEELC 19863 [KLR] [20 September 2023] [Ruling] in dismissing the petition, the court held; -
22.On whether the petition is statutorily time barred, from the Mukisa Biscuit case, it is clear that a plea of limitation can be raised by a preliminary objection contrary to the submissions by the petitioner. To determine whether the suit is time barred, one needs to look at the pleadings. In the petition dated 9th December, 2024 and filed on 10th December 2024, the petitioner states;
23.Section 7 of the Limitations of Action Act Cap 22 provides that “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.’’
24.In this suit, the petitioner has stated that on or about1972, the 1st respondent compulsorily acquired the petitioner’s land parcel Moiben/Chebara/423 measuring 23.00h without following the due process or procedure and later in the year 2000, the 2nd respondent unlawfully caused the same parcel of land measuring 0.7 Ha to be registered in its name. From the petitioner’s pleadings, he was aware that the cause of action arose in 1972 and 2000. I agree with the respondent’s submissions that this petition has been brought to court after the lapse of 52 years since the cause of action arose.
25.In the end, I find the petition has not disclosed the provisions of the constitution that have been infringed or likely to be infringed and is also is time barred. Consequently, l find the preliminary objection merited and l strike out the petition and notice of motion dated 9th December 2024 with costs to the respondents
26.Orders accordingly.
DATED, SIGNED AND READ VIRTUALLY AT ITEN THIS 26TH DAY OF JUNE, 2025.L. N. WAITHAKAJUDGEIn the presence of;Ms. Kosgei for the PetitionerMr. Onyango H/B for Mr. Yego for the 1st RespondentN/A for the 3rd RespondentMr. Kutei H/B for Ms. Rop for the 4th and 5th Respondents