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Court of AppealAllowedNot stated in the judgment

Claasen v Commissioner of Lands & 4 others (Civil Appeal 85 of 2016) [2019] KECA 766 (KLR)

Court of Appeal of Kenya
9 May 2019
2,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a compensation claim under the Constitution doesn't die with the petitioner; the estate's legal representative can continue it.

What this practically means

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Executive summary

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This appeal arose from a ruling of the Environment and Land Court at Kitale (E. Obaga, J.) dismissing an application by the appellant, son and legal representative (holding a limited grant ad litem) of the deceased petitioner Nicolaas Henrick Claassen, to be substituted as petitioner in Constitutional Petition No. 16 of 2013 (transferred to the ELC as Petition No. 7 of 2015). The petition alleged unlawful deprivation of two Kitale farms totalling 4,638 acres and sought declarations and compensation of some Shs 13.9 billion. The court below held that the deceased's unascertained rights were personal, not a chose in action, and that the petition abated on his death, relying on the Ugandan case of Phillip Karugaba v. Attorney General, which turned on a Ugandan rule expressly providing for abatement. Allowing the appeal, the Court of Appeal (Githinji, Okwengu and Mohammed, JJA) held that the right to institute proceedings under Article 22(1) is a chose in action; that the compensation claim survived for the benefit of the estate under section 2(1) of the Law Reform Act and could be enforced by the personal representative under section 82 of the Law of Succession Act; and that enforcement of the Bill of Rights is not solely a personal right but a collective obligation under Article 3(1). The Court endorsed the High Court's decision in Elizabeth Kwini, distinguishing Karugaba as resting on Ugandan statutory provisions with no Kenyan equivalent. The ruling of 2nd February 2016 was set aside, with costs of the interlocutory appeal made costs in the pending petition.

Questions the Court framed

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

  1. 1.Whether a constitutional petition seeking compensation for alleged unconstitutional deprivation of property can be continued by a legal representative of the petitioner after the death of the petitioner
  2. 2.Whether the right to institute court proceedings under Article 22(1) is a chose in action that survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act
  3. 3.Whether the constitutional petition abated upon the death of the sole petitioner

Key legal issues

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01

Whether the right to institute constitutional proceedings is a chose in action

Holding

The Court held that the right to institute proceedings under Article 22(1) is a chose in action, and the trial judge's finding to the contrary was erroneous in law.

Reasoning

Article 22(1) expressly confers the right to institute court proceedings and defines the cause of action as a claim that a Bill of Rights freedom has been denied, violated or infringed or is threatened. It does not matter that the right is exercised through a petition under the Practice and Procedure Rules. The learned judge's findings that the right was personal and not a chose in action were erroneous in law, especially since the claim also sought compensation of nearly Shs 14 billion, which survived for the benefit of the estate.

p. 5
02

Whether the constitutional petition abated on the death of the sole petitioner

Holding

The petition did not abate; the finding of abatement, based on Ugandan statutory provisions, was contrary to section 2(1) of the Law Reform Act and section 82 of the Law of Succession Act and the purpose of Article 22(2).

Reasoning

The trial judge relied on Uganda's Rule 15(1) which expressly provides for abatement; Kenya has no equivalent provision. Instead, section 2(1) of the Law Reform Act provides that all causes of action subsisting in a deceased survive for the benefit of the estate, and section 82 of the Law of Succession Act empowers personal representatives to enforce such causes of action. The compensation claim for deprivation of property therefore survived and could be continued by the legal representative.

p. 6
03

Availability of Civil Procedure Act/Rules in constitutional petitions

Holding

The Court noted there was no cross-appeal against the trial judge's finding that substitution may be based on the Civil Procedure Rules, and added that Rule 3(8) of the Practice and Procedure Rules gives the court inherent power to make orders for the ends of justice.

Reasoning

The Practice and Procedure Rules are silent on substitution of a deceased petitioner. The trial judge's finding that the Civil Procedure Rules could be relied on was not challenged by cross-appeal, so it stands. The Court supplemented this by pointing to the inherent power under Rule 3(8), and the constitutional obligation under Article 159(2)(d) and (e) to disregard procedural technicalities and protect the purpose and principles of the Constitution.

p. 6
04

Personal actions and survival of causes of action

Holding

Causes of action of a personal nature do not survive for the benefit of the estate; the maxim actio personalis moritur cum persona applies to them, but a claim for compensation for deprivation of property is not of that nature.

Reasoning

The proviso to section 2(1) of the Law Reform Act excludes defamation, seduction, and marital causes of action as illustrations of personal actions; divorce and custody disputes are others. A cause of action is not synonymous with a chose in action: a cause of action is a combination of facts entitling a person to a remedy, while a chose in action includes a right to bring proceedings for recovery of a sum of money or pecuniary damages. The deceased's Article 40(1) property claim vested in him and survived for the estate.

p. 5

Legal principles established

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  • The right to institute court proceedings for enforcement of the Bill of Rights under Article 22(1) is a chose in action which, where the claim is for compensation, survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act and may be continued by the deceased's legal representative.
  • Whether or not a right of action in a constitutional petition survives the death of the petitioner depends on the nature of the petition and the relief sought.
  • The right to institute proceedings for enforcement of the Bill of Rights is not solely a personal right; it is also a collective obligation of every person to defend the Constitution, so such claims are not extinguished as purely personal actions.
  • Where the constitutional petition procedure rules are silent, the court may rely on the Civil Procedure Act and Rules for substitution, and may invoke Rule 3(8) of the Practice and Procedure Rules and Article 159(2)(d) and (e) to make orders necessary for the ends of justice.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the trial court dated 2nd February, 2016 is set aside
  3. 3.The costs of the appeal shall be costs in the pending petition and in the discretion of the trial court

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
Environment and Land Court at Kitale
Constitutional Petition No. 7 of 2015 (originally Constitutional Petition No. 1 of 2013, High Court at Eldoret)
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the Environment and Land Court

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.

That was a cause of action vested in him which survived for the benefit of the estate by virtue of section 2(1) of the Law Reform Act and which could be continued by the appellant as legal representative.
p. 5Survival of constitutional compensation claim for the estate
whether or not a right to action in a constitutional petition survives the death of the petitioner depends on the nature of the petition and the relief sought
p. 6Test for survival of constitutional claims after death of petitioner
The right to institute court proceedings is undoubtedly a chose in action.
p. 3Right of access under Article 22(1) as chose in action
For the foregoing reasons, the appeal is allowed and the ruling of the trial court dated 2nd February, 2016 is set aside.
p. 6Final orders / disposition
As this is an interlocutory appeal, the costs of the appeal shall be costs in the pending petition and in the discretion of the trial court.
p. 6Costs order

Issues in the judgment

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minor

The judgment states the appellant is a son and legal representative, and elsewhere refers to 'his son, the respondent', apparently misdescribing the appellant as the respondent in paragraph 4.

minor

The judgment quotes the Uganda Rule as referring to Article 137 of the Constitution but then quotes Article 137(1) as concerning interpretation of the Constitution by the Court of Appeal, which does not correspond to the described abatement rule context.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Claasen v Commissioner of Lands & 4 others (Civil Appeal 85 of 2016) [2019] KECA 766 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/766/eng@2019-05-09

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