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Court of AppealDismissedCivil Appeal 159 & 254 of 2019 (Consolidated)· [2022] KECA 720 (KLR)

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

Court of Appeal
22 July 2022
6,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal (Kiage, M'Inoti and Ngugi, JJA) dismissed two consolidated appeals against the judgment of Ombwayo, J. of the Environment and Land Court at Eldoret, which had declared the acquisition of Eldoret Municipality/Block 15/239 (53 acres) by former President Daniel arap Moi and its subsequent transfer to Rai Plywood (K) Limited unconstitutional, irregular and a nullity ab initio, and ordered compensation of Kshs.1,060,000,000 to the estate of the late Noah Kipngeny Chelugui. The court held that the claim was 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 otherwise. On retrospectivity, an issue raised for the first time on appeal but submitted on by the parties, the court held that Article 40 of the Constitution is not limited in its application and can apply retrospectively in appropriate cases, applying the Supreme Court's reasoning in Samuel Kamau Macharia and Kiluwa Ltd. On quantum, the court found a sound basis for the Afriland valuation of Ksh.1,710,000,000 but declined to enhance the award absent a cross-appeal, upholding Kshs.1,060,000,000 as within range. The bias allegation against the trial judge was rejected as bare and unsupported. Nathaniel Lagat's appeal (Civil Appeal 254) failed because he had not appealed the ruling declining his joinder. Both appeals were dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the claim was time barred under section 7 of the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 9
02

Whether the Constitution of Kenya, 2010 applied retrospectively to 1980s events

Holding

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.

Reasoning

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'.

p. 10
03

Whether the 1st respondent was entitled to special damages as assessed in its valuation report

Holding

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.

Reasoning

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.

p. 12
04

Whether the learned Judge was biased

Holding

The allegation fails; it was bare, unsupported by any evidence, and never raised before the trial court.

Reasoning

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.

p. 12
05

Whether Civil Appeal No. 254 of 2019 (Nathaniel K Lagat) was meritorious

Holding

Not meritorious; having not appealed the ruling declining his joinder, Nathaniel could not mount an appeal based on that refusal.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.Both appeals (Civil Appeals Nos. 159 and 254 of 2019) dismissed
  2. 2.Costs of both appeals awarded to the 1st respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya (former)Article 75
  • Limitation of Actions ActSection 7
  • Registered Land Act (Repealed)
  • Land Registration ActSections 24, 25 and 107(1)
  • Court of Appeal RulesRule 86(1)

Cases cited (11)

  • Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & another
    [2014] eKLR

    Limitations of actions principle applies to constitutional petitions (appellants' submission)

  • Chief Land Registrar & 4 others vs Nathan Cherop Koech & 4 Others
    Civil Appeal No. 51 of 2016

    Surrender of grant is not compulsory acquisition; violation of constitutional rights not subject to Limitation of Actions Act

  • Zinj Limited -V- Attorney General & 3 Others
    [2019] eKLR

    Court may rely on one valuation report on record to determine reasonable compensation

  • Attorney General &_Another VS-Rahimkhan Afzalkhan Rahimkhan & 4 Others
    [2019] eKLR

    Upheld use of valuation reports in assessing special damages for lost property

  • Bernert VS ABSA Bank Limited
    [2010] ZACC 28

    Presumption of judicial impartiality and double requirement of reasonableness in bias allegations

  • Kiluwa Limited & Another -VS- Business Liaison Company Limited & 3 Others
    [2021] KESC 37 (KLR)

    Constitutional petitions alleging rights violations cannot be time barred; Article 47 has retrospective applicability

  • Samuel Kamau Macharia -v- Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR

    A constitution is not necessarily subject to principles against retrospectivity; language of provision governs

  • Patriotic Guards Limited v James Kipchirchir Sambu
    [2018] eKLR

    Discretion must be exercised judiciously upon legal principles and circumstances of each case

  • Dominic Arony Amolo vs. Attorney General
    Nairobi HC Misc. Civil Case No. 1184 of 2003 (O.S) [2010] eKLR

    Limitation law cannot shield State from fundamental rights enforcement claims

  • Otieno Mak'Onyango vs. Attorney General & another
    Nairobi HCCC No. 845 of 2003

    Limitation law cannot shield State from fundamental rights enforcement claims

  • Johnstone Ogechi vs. The National Police Service
    [2017] eKLR

    Caveat that each case on limitation of constitutional petitions is decided on its own merits

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

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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, "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.