Kenya Forest Service v Rutongo’t Farm Limited [2015] KECA 160 (KLR)

The court applied the Anarita Karimi Njeru requirement and the test in Trusted Society of Human Rights Alliance and Mumo Matemu. Provided a petition identifies the constitutional provisions violated, the manner and particulars of the violation and the remedy sought, it is competent. The Mutunga Rules, not yet enacted at filing, were inapplicable. The petition satisfied the threshold despite the missing annextures.

The court found the transaction was one of private sale; Olsen chose to dispose of the land to the appellant, so there was no compulsory acquisition, confiscation or expropriation engaging Article 40. Further, the petition and affidavit contained no particulars of the members said to have taken possession, or of the alleged evictions and destruction, so the evidential threshold for the alleged violations was not met. The trial judge therefore misdirected himself.

Once the sale agreement with Olsen was executed, a contract came into existence; when Olsen transferred the land to the appellant instead, a claim for breach arose against Olsen. No contract existed between the respondent and the appellant, so a claim for specific performance against the appellant was misplaced. The respondent never sued Olsen, whose liability was time barred, and instead clothed the contractual claim in constitutional garb, an abuse of process.

Section 7 of the Limitation of Actions Act bars suits to recover land after twelve years from accrual of the right of action. The contract was made on 28th August 1973 and the petition filed on 12th January 2011. Even treated as a land matter, the suit should have been filed by 27th August 1985. The constitutional petition was deployed to defeat the Limitation of Actions Act.

The suit land was gazetted under the repealed Forest Act after the requisite twenty-eight days' notice, and no objection was raised to the notice. Nothing showed the appellant acted illegally or wrongfully in gazetting the land as a public forest. The court below wrongly held that the degazettement argument had no basis and that the Constitution superseded the Act in the circumstances.

Section 12 of the Land Registration Act, 2012 establishes the office of Chief Land Registrar to discharge the powers conferred by the Act, while section 106 preserves rights, liabilities and remedies of parties over land under repealed statutes including the Registration of Titles Act. The orders were therefore not unenforceable merely because the office of Commissioner of Lands had been abolished.