Janmohammed (Suing as the Executrix of the Estate of Daniel Toroitich arap Moi) & 2 others v Chelugui & another (Suing as the administrators of the Estate of the Late Noah Kipngeny Chelugui) & 6 others
The bottom line
#Kenya's Court of Appeal confirmed there is no time limit for suing over constitutional property rights violations, upholding a Kshs.1.06 billion award.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim was time barred under section 7 of the Limitation of Actions Act
Not time barred; limitation periods in the Limitation of Actions Act do not apply to constitutional petitions enforcing fundamental rights unless the Constitution expressly provides so.
The court concurred with the trial judge's finding on laches and relied on Chief Land Registrar v Koech, holding that fundamental rights cannot be tied to the shackles of the Limitation of Actions Act, subject only to limitations in Article 24 of the Constitution. Each case is decided on its own merits.
Whether the Constitution of Kenya, 2010 applied retrospectively to 1980s events
Article 40 is not limited in its application and can apply retrospectively in appropriate cases; the issue was nonetheless raised for the first time on appeal but entertained since parties submitted on it.
Applying Samuel Kamau Macharia, a constitution is not necessarily subject to principles against retrospectivity; courts must pay due regard to the language of the provision. Article 259(1) requires purposive interpretation. The right to property is ring-fenced and the case was 'a study in arbitrary deprivation'.
Whether the 1st respondent was entitled to special damages as assessed in its valuation report
Yes, there was a sound basis for the award as assessed (Ksh.1,710,000,000), but the court would not enhance the trial court's award of Kshs.1,060,000,000 absent a cross-appeal; the award was within range.
Relying on Zinj Limited and Attorney General v Rahimkhan, a judge may rely on a valuation report on record; the appellants produced no valuation report of their own. The trial judge's misgivings about comparables were erroneous, but failure to produce sale agreements was not fatal to the valuation.
Whether the learned Judge was biased
The allegation fails; it was bare, unsupported by any evidence, and never raised before the trial court.
The court held this was hardly the point at which to raise such an allegation, and no material was placed before it on which the claim could be dealt with. It declined to say more.
Whether Civil Appeal No. 254 of 2019 (Nathaniel K Lagat) was meritorious
Not meritorious; having not appealed the ruling declining his joinder, Nathaniel could not mount an appeal based on that refusal.
The trial court had declined to enjoin Nathaniel by a ruling dated 1st October 2015; no appeal was preferred against that decision, so it was too late in the day to complain of being affected by the judgment.
Legal principles established
#- Limitation periods in the Limitation of Actions Act do not apply to constitutional petitions alleging violation of fundamental rights and freedoms, unless expressly stated in the Constitution.
- Article 40 of the Constitution (protection of right to property) is not limited in its application and can apply retrospectively in appropriate cases.
- In granting special damages for deprivation of property, a trial court is guided by a valuation report; absent a contrary report on record, an appellate court has no basis to interfere with the award.
- A party aggrieved by a ruling declining joinder must appeal that ruling; it is too late to mount an appeal on the refusal at a later stage.
Court orders
#- 1.Both appeals (Civil Appeals Nos. 159 and 254 of 2019) dismissed
- 2.Costs of both appeals awarded to the 1st respondent
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- ELC Petition No. 9 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the Environment and Land Court (Article 164(1)(c) of the Constitution, as invoked by the appeal against the ELC judgment)
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.
- Ododa v District Land Registrar, Kericho & 3 others; Rop & another (Interested Parties) (Environment and Land Petition E002 of 2017) [2024] KEELC 5123 (KLR)[2024] KEELC 5123 (KLR)4 Jul 2024
- Ododa v District Land Registrar, Kericho & 3 others; Rop & another (Interested Parties) (Environment and Land Petition E002 of 2017) [2024] KEELC 5123 (KLR)[2024] KEELC 5123 (KLR)4 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Janmohammed (Suing as the Executrix of the Estate of Daniel Toroitich arap Moi) & 2 others v Chelugui & another (Suing as the administrators of the Estate of the Late Noah Kipngeny Chelugui) & 6 others", Case Analysis (2022). Civil Appeal 159 & 254 of 2019 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/720/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.