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Supreme CourtAllowedPetition 17 (E021) of 2023 & 24 (E027) of 2022 (Consolidated)

Janmohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others

Supreme Court of Kenya
2 August 2024
Martha Karambu KoomeM. K. KoomeMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoI. Lenaola W. Ouko
14,916 words in judgment
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·~60 min to read original · ~4 min brief

The bottom line

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Supreme Court rules property rights claims can be barred by limitation laws, overturning Court of Appeal.

What this practically means

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The Supreme Court of Kenya decided a case about land that was once owned by President Moi. The people who claimed the land waited 31 years to sue. The Court said that even constitutional property rights can be limited by time limits in the law. The claimants failed to prove they owned the land, and their long delay without explanation meant their case could not proceed. The Court overturned the earlier decision and allowed the appeal.

Executive summary

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The Supreme Court allowed the consolidated appeal and overturned the Court of Appeal judgment that had affirmed the Environment and Land Court's decision. The dispute concerned a 53-acre parcel of land (Eldoret Municipality/Block 15/239) which was registered in the name of the late President Daniel Toroitich Arap Moi in 1983 and later subdivided, with portions sold to Rai Plywood (K) Limited. The 2nd respondents, as legal representatives of the estate of Noah Chelugui, claimed the property was unlawfully acquired from him. The Supreme Court held that the Court of Appeal fundamentally erred by failing to consider article 24 of the Constitution when determining whether the claim was time-barred under section 7 of the Limitation of Actions Act. The court found that the 31-year delay from 1983 to 2014 was inordinate and unexplained, and that the Limitation of Actions Act is a law envisaged under article 24 to limit the right to institute proceedings under article 22. The court also found that the 2nd respondents failed to prove that Noah Chelugui was the title holder of the suit property, as his Certificate of Confirmation of Grant did not list it as part of his estate. Furthermore, there was no evidence that President Moi acquired the property fraudulently, and the Court of Appeal's own decision in the Nathan Tirop case had confirmed the legality of the subdivision and transfers. The court set aside the judgments of the lower courts and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to determine the Appeal
  2. 2.Whether article 40 of the Constitution applies retrospectively
  3. 3.Whether the 2nd respondents ought to have moved the Environment and Land Court by way of a Civil Suit as opposed to a constitutional petition
  4. 4.Whether a constitutional claim of violation of property rights under article 40 of the Constitution, is subject to limitation under article 24 thereof, and section 7 of the Limitation of Actions Act
  5. 5.Whether the Court of Appeal erred in not considering and re-evaluating the evidence on record
  6. 6.Whether Noah Chelugui was the title holder of both LR 10492 and the Suit Property herein
  7. 7.Whether the 1st and 2nd appellants acquired valid title to the suit property
  8. 8.Whether the Court of Appeal disregarded its own finding relating to the Suit Property
  9. 9.Reliefs, if any, available to the parties

Key legal issues

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01

Whether a constitutional claim of violation of property rights under article 40 is subject to limitation under article 24 and section 7 of the Limitation of Actions Act

Holding

Yes, such a claim is subject to limitation. The Limitation of Actions Act is a law envisaged under article 24 of the Constitution. The Court of Appeal erred by not considering article 24 and the inordinate delay of 31 years.

Reasoning

The Supreme Court held that the Court of Appeal fundamentally omitted to consider article 24 of the Constitution when determining whether section 7 of the Limitation of Actions Act applied. The right in question was not just the right to property under article 40, but the right to institute proceedings under article 22. The Limitation of Actions Act is precisely such law as is envisaged under article 24 to limit that right. The court found that the 31-year delay from 1983 to 2014 was inordinate and unexplained, and the appellate court should have interrogated it. The argument that a constitutional petition automatically ousts limitation is not legally tenable.

p. 25
02

Whether Noah Chelugui was the title holder of the suit property (Eldoret Municipality/Block 15/239)

Holding

No, the 2nd respondents did not prove that Noah Chelugui was the title holder of the suit property. The evidence showed the suit property was registered in the name of President Moi, and the 2nd respondents' Certificate of Confirmation of Grant did not list the suit property as part of the estate.

Reasoning

The Supreme Court reviewed the evidence and found that there was no proof that Eldoret Municipality/Block 15/10 was assigned to Noah Chelugui; rather, it was registered in the Government of Kenya. The suit property (Block 15/239) was registered in President Moi's name. The 2nd respondents' Certificate of Confirmation of Grant only listed Noah Chelugui's parcel, Block 15/237, not the suit property. The court concluded that the two superior courts had no basis to find the 2nd respondents were the rightful proprietors of the suit property.

p. 28
03

Whether the 1st and 2nd appellants acquired valid title to the suit property

Holding

Yes, the appellants acquired valid title. There was no evidence that President Moi acquired the suit property fraudulently, and the Court of Appeal's own decision in the Nathan Tirop case confirmed the legality of the subdivision and transfers.

Reasoning

The Supreme Court found nothing on record to suggest that President Moi acquired the suit property fraudulently. The claims were based on unsubstantiated allegations. The court applied the principle from Dina Management and Torino Enterprises that a registered proprietor must prove the root of title, but also noted that the claimant must prove their own entitlement. The Court of Appeal in the Nathan Tirop case had already held that the surrender and subdivision of LR No 10492 was legal, and the court found this decision relevant and applicable. The court concluded there was no basis to fault the validity of the 1st appellant's title.

p. 28

Legal principles established

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  • A constitutional claim for violation of property rights under Article 40 is subject to limitation under Article 24 and the Limitation of Actions Act.
  • Petitions based on fundamental rights violations are not automatically exempt from limitation; courts must consider factors like delay and mischief on a case-by-case basis.
  • A registered proprietor whose title is challenged must go beyond the title document and show legal, formal, and unencumbered acquisition.
  • A party claiming infringement of property rights must also prove their own entitlement to constitutional protection.
  • The Limitation of Actions Act is a law envisaged under Article 24 of the Constitution to limit the right to institute proceedings.
  • Inordinate delay in filing a claim, without explanation, can bar a constitutional property rights petition.

Court orders

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  1. 1.The consolidated appeal is hereby allowed
  2. 2.The Judgment of the Court of Appeal dated July 22, 2022 is hereby overturned
  3. 3.Each party shall bear its own costs
  4. 4.We hereby direct that the sum of Kshs. 6,000/= deposited as security for costs in the consolidated appeal herein be refunded to the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
I. Lenaola W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Appeal No 159 of 2019 (Consolidated with Civil Appeal No 254 of 2019)
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition 24 (E027) of 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We think with all due respect, that it was a fundamental omission by the appellate court, not to consider the provisions of article 24 of the Constitution in determining whether section 7 of the Limitation of Actions Act was applicable to the original proceedings before the ELC.
p. 25 Limitation of Actions and Constitutional Petitions
The Limitation of Actions Act seeks to limit the time within which a right under article 22 may be exercised. In this regard we agree with the appellants and the Attorney General that the said Act is precisely such law as is envisaged under article 24 of the Constitution.
p. 25 Limitation of Actions and Article 24
The registered proprietor must go beyond the instrument of title and show that the acquisition was legal, formal and free from encumbrance. However, the responsibility to prove legitimacy of title is not only limited to the party whose title is being challenged. It also extends to the party claiming infringement of his property rights, to prove his entitlement warranting the attendant constitutional protection sought.
p. 29 Burden of Proof in Title Challenges
There is nothing on record to suggest that former President Moi acquired the suit property either fraudulently, or in a manner other than as indicated on record.
p. 28 Validity of Title

Key timeline

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1983
Alleged transfer of the suit property to President Moi
2014
Original petition filed in the Environment and Land Court
2022-07-22
Court of Appeal judgment in favor of the respondents
2024
Supreme Court allows appeal, overturns Court of Appeal

Practical implications

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For lawyers

Limitation applies to Article 40 claims

When drafting a petition for property rights violations, always consider the Limitation of Actions Act. The Supreme Court confirmed that Article 24 allows limitation of Article 22 rights. Advise clients to file promptly; a 31-year delay without explanation will likely be fatal, even if the claim is framed as a constitutional petition.

For businesses

Prove root of title thoroughly

If your land title is challenged, you must show how it was acquired legally, formally, and without encumbrance. Simply holding a certificate of title is not enough. Maintain clear records of all transactions. Also, be aware that even if you have a constitutional claim, you cannot rely on it to bypass statutory limitation periods.

For individuals

Act quickly on land disputes

If you believe your land rights have been violated, do not delay in taking legal action. The Supreme Court made clear that waiting decades to file a case can prevent you from getting justice, even if you argue your constitutional rights were breached. The law sets time limits for a reason, and courts will enforce them.

Frequently asked questions

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Can a constitutional claim for property rights be barred by limitation in Kenya?+

Yes, the Supreme Court in this case confirmed that the Limitation of Actions Act applies to claims under Article 40 of the Constitution. A court will consider the delay and other factors before deciding whether to allow the case to proceed.

What is the limitation period for property claims in Kenya?+

Section 7 of the Limitation of Actions Act sets a 12-year limitation period for actions to recover land. The Court held that the Act is a valid law under Article 24 to limit the right to file a constitutional petition about property.

Who proved ownership in the Moi land case?+

The Supreme Court found that the respondents (claimants) did not prove that the suit property belonged to their father's estate. Their certificate of confirmation of grant did not list the property. The appellants (Moi's estate) provided valid title documents, and there was no evidence of fraud.

What does the Supreme Court decision mean for land owners in Kenya?+

Land owners must be ready to show the full history of how they acquired their land, not just the title deed. Also, if someone challenges your title, you can raise the defence of limitation if they waited too long to sue, even if they claim constitutional rights.

Later judgments citing this (23)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Janmohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others", Case Analysis (2024). Petition 17 (E021) of 2023 & 24 (E027) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/39/eng@2024-08-02

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