Nderitu v Attorney General & another (Civil Appeal 96 of 2013) [2019] KECA 1006 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a rights claim filed 26 years late, confirming constitutional petitions cannot be used to dodge time limits for ordinary lawsuits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in dismissing the petition against the weight of evidence relating to the arrest, detention, search, threats, cruel treatment and prosecution of the appellant
- 2.Whether delay defeats a claim for infringement of constitutional rights and freedoms, and whether the 26-year delay in filing the petition was explained
- 3.Whether the trial judge was biased and partisan in favour of the respondents
- 4.Whether the judge failed to evaluate the entire evidence on record
- 5.Whether the constitutional petition can be used to circumvent statutory limitation periods applicable to tort claims such as malicious prosecution and defamation
- 6.Whether the appellant's allegations of torture as defined in international law were properly considered by the trial court
Key legal issues
#Whether limitation periods apply to constitutional petitions enforcing fundamental rights
There is no statutory limitation period for petitions under Articles 22 or 258, and fundamental rights cannot be tied to the Limitation of Actions Act subject to Article 24; however, delay must be explained case by case, and clear statutory limitation provisions apply even to petitions
The Court drew on Kiluwa Limited and David Gitau Njau that no limitation period is prescribed for such petitions, but tempered this with Johnstone Ogechi that clear statutory limitation provisions set boundaries for a court's jurisdiction and apply whether proceedings are ordinary actions or petitions. A claimant who unreasonably delays may have the claim denied as an abuse of process. The Court found no specific explanation of delay in the appellant's affidavit.
Whether a constitutional petition may circumvent statutory limitation applicable to torts
No - in the absence of satisfactory explanation, a constitutional petition should not be used to circumvent primary legislation or the main cause of action; the appellant's claims were properly actions in malicious prosecution or defamation which would be time-barred
The appellant could have sued in malicious prosecution and defamation, both subject to limitation. Relying on Josephat Ndirangu and Peter Lubale Lubullellah, the Court held litigants should not avoid provisions of an Act by going behind statute and relying directly on constitutional provisions. The cause of action does not change by naming the pleading a petition.
Whether trial-related matters can be re-opened by a fresh petition
Trial-related matters dealt with or capable of being dealt with by the trial court or the High Court on appeal cannot be re-examined through a petition to enforce fundamental rights; violations within the trial merged with the judgment of the High Court that quashed the conviction
The Court endorsed the trial judge's adoption of Maharaj v Attorney General of Trinidad and Tobago (No. 2) via the Methodist Church case: ordinary errors in adjudication are cured by appeal or review, and only rare procedural errors amounting to breaches of natural justice infringe rights. The appellant did not demonstrate that this principle was erroneous.
Whether the 26-year delay was explained and whether the trial judge erred in applying laches
The delay was unexplained; the appellant's submissions merely rehearsed background facts, and the promulgation of the 2010 Constitution was not an excuse for delay. The Court saw no reason to interfere with the finding that the claims were defeated by inordinate delay
The Court examined the supporting affidavit and could not discern any paragraph explaining the delay. Following Lt. Col. Peter Ngari Karume, unexplained inordinate delay renders a petition a gross abuse of process. Respondents were prejudiced by the loss of records, including the Occurrence Book ordinarily destroyed after five years, impairing any justification of the pre-trial detention under Section 72(3) of the old Constitution.
Whether the appellant's complaints fell within the tort of malicious prosecution rather than a constitutional petition
Following Koigi Wamwere v Attorney General, complaints regarding the motivations impelling charges belong within the purview of the tort of malicious prosecution, and success of a criminal appeal does not ipso facto make the trial malicious or improper
The Court noted that comparable cases on arrest, detention and acquittal were decided on the torts of malicious prosecution or defamation, which carry their own limitation periods. The success of a criminal appeal does not itself establish malicious or improper prosecution. The appellant never instituted those tort claims, making the malicious-prosecution authorities irrelevant to his petition.
Legal principles established
#- Fundamental rights and freedoms are not subject to the Limitation of Actions Act, subject to the limitations in Article 24 of the Constitution, but each case must be decided on its own merits and delay must be explained
- A constitutional petition cannot be used to circumvent primary legislation or limitation periods applicable to an ordinary cause of action
- The promulgation of the 2010 Constitution does not found, extend or revive old causes of action
- The remedy for trial-related errors is appeal, and no human right is contravened by a judgment that is merely wrong and liable to be set aside on appeal; only errors amounting to failure to observe fundamental rules of natural justice constitute infringements
- The absolute ban on torture is a principle of jus cogens binding on Kenya independent of treaty, convention or covenant
Court orders
#- 1.Affirmed the trial court's finding that the Director of Public Prosecution was properly joined as the 2nd respondent
- 2.Dismissed the appeal as devoid of merit
- 3.Made no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition (not stated)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court sitting in its constitutional and human rights jurisdiction (Articles 22, 23, 165, 258 framework); specific appellate statutory basis not stated in the judgment.
Relief refused
#Reversal of the dismissal of the petition and a declaration of violation of fundamental rights
The claims were defeated by inordinate and unexplained delay; a constitutional petition cannot be used to circumvent limitation periods applicable to the underlying torts of malicious prosecution and defamation
Damages (exemplary and general) for alleged violation of rights
No violation was established; the proper remedy for complaints about the prosecution lay in a suit for malicious prosecution or defamation, which was never instituted within the legal time frame
Costs
No order as to costs - "This appeal has no merit and is hereby dismissed with no order as to costs."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This appeal has no merit and is hereby dismissed with no order as to costs.
In our view, subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act. However, each case is to be decided on its own merits
In the absence of satisfactory explanation, we are of the considered view that a constitutional petition should not be used to circumvent a primary legislation or main cause of action.
Promulgation of the 2010 Constitution is not an act that extends or revives old causes of action. Promulgation neither founds a cause of action nor is it an absolute excuse for each and every delay in instituting proceedings for causes of action which arose and were known to exist.
The absolute ban on torture is a principle of jus cogens and is a peremptory norm of international law binding independent of treaty, convention or covenant.
It is only in rare cases that an error in the judgment or order of a court can constitute a breach of human right or fundamental freedoms.
Accordingly, we affirm the finding and holding by the trial court that the 2nd respondent is properly enjoined in these proceedings.
Issues in the judgment
#The judgment does not state the appellate case number of the present appeal or the case number/decision date of the High Court petition appealed from
The delivery clause reads "DELIVERED AND DELIVERED AT NAIROBI", an apparent typographical duplication in the original
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)[2026] KEELC 160 (KLR)21 Jan 2026
- Yegon (Suing as the Administrator of the Estate of Kipyegon Arap Kirui - Deceased) v Ekaterra Tea Company Limited (Formerly Kenya/Unilever Tea Kenya Ltd) & 2 others (Environment and Land Constitutional Petition E002 of 2022) [2025] KEELC 5694 (KLR)[2025] KEELC 5694 (KLR)31 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Nderitu v Attorney General & another (Civil Appeal 96 of 2013) [2019] KECA 1006 (KLR)", Case Analysis (2019). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1006/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.