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ELCStruck OutPetition (Nairobi), filed 4th October 2012 - number not stated in judgment· [2015] KEELC 766 (KLR)

Peter Mungai Ngengi v Mama Ngina Kenyatta & another [2015] KEELC 766 (KLR)

High Court of Kenya
20 April 2015
2,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a petition over land allegedly taken for Jomo Kenyatta's home, ruling it was an ordinary land claim disguised as a constitutional case and filed far too late.

What this practically means

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Executive summary

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The petitioner filed a constitutional petition in October 2012 alleging that his land had been alienated and merged into parcel Ngenda/Kimunyu/982 to establish a home for the late President Jomo Kenyatta; he claimed compulsory acquisition without due process under former Section 75(1) of the Constitution, fraudulent transfer through falsified documents, and violation of his property rights. He sought general and exemplary damages plus excision and transfer of 3½ acres from the suit property. The petition was originally also brought against Hon. Uhuru Kenyatta, but that claim was consensually withdrawn in August 2013 after he became President. The 1st and 2nd Respondents filed preliminary objections arguing the claim was statute barred under Section 7 of the Limitation of Actions Act and that the petition was an ordinary land suit disguised as a constitutional petition. The court held that a matter is not constitutional merely because constitutional provisions are cited or constitutional remedies sought; the petitioner must demonstrate a bona fide constitutional matter through clear pleadings. The undisputed evidence showed the property was registered to Jomo Kenyatta in 1963, before he became President, and the alleged fraud was a purely private dispute between individuals; there was no proof of compulsory acquisition by the Government. The remedy lay in an ordinary suit for recovery of land, which was long barred. Finding the claim time barred even if refiled, and with sympathy, the court struck out the petition, suggesting recourse to the National Land Commission for any historical injustice, with no orders as to costs.

Key legal issues

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01

Whether the petition raises a genuine constitutional matter

Holding

It does not; it is an ordinary land claim disguised as a constitutional petition

Reasoning

The undisputed evidence showed the suit property was registered to Jomo Kenyatta in 1963, before he became President. The alleged fraud was by one private individual against another, not by the State, and there was no proof of compulsory acquisition by the Government. The constitutional label was adopted to evade the statute of limitations.

p. 4
02

Whether limitation applies to the claim

Holding

Yes; the claim to recover land filed in 2012 was long past the 12-year bar and no constitutional basis exists to escape it

Reasoning

Section 7 of the Limitation of Actions Act bars land recovery claims after 12 years. The cause accrued on eviction in 1968 (or registration in 1963). Limitation rules do not apply to genuine constitutional violations, but this claim was not genuinely constitutional, so the bar applied even to any refiling as an ordinary suit.

p. 5

Legal principles established

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  • A constitutional matter includes matters within Article 165(3)(b)-(e), but a matter is not constitutional merely because constitutional provisions are cited or constitutional remedies are prayed for; the petitioner must demonstrate a bona fide constitutional matter through clear pleadings
  • Where a dispute is a purely private civil dispute over land, the remedy lies in an ordinary suit, not a constitutional petition; limitation laws apply to such ordinary claims
  • Section 7 of the Limitation of Actions Act bars claims for recovery of land after 12 years from accrual of the cause of action

Court orders

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  1. 1.The petition is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Article 165(3)(b)-(e) of the Constitution (jurisdiction over fundamental rights and constitutional matters); Article 23 (reliefs)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Mungai Ngengi v Mama Ngina Kenyatta & another [2015] KEELC 766 (KLR)", Case Analysis (2015). Petition (Nairobi), filed 4th October 2012 - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/766/eng@2015-04-20

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