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ELCStruck OutCase No 168 of 2016· [2017] KEELC 3007 (KLR)

Haron Onyancha v National Police Service Commission & another [2017] KEELC 3007 (KLR)

Environment and Land Court
28 April 2017
JMJ. MUTUNGI
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who waited 16 years to sue the Kenyan police over occupation of his land lost because claims against government bodies expire within 12 months or 3 years.

What this practically means

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Executive summary

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The plaintiff filed suit by plaint dated 20th June 2016 alleging that officers of the 1st defendant took occupation in or about the year 2000 of his land parcel LR No. Majoge/Magenche/1578, occupying structures he had erected, without paying rent, and refusing to vacate. He sought mesne profits, general damages and an order of eviction, asserting unlawful occupation amounting to forcible detainer. The 2nd defendant, the Attorney General, entered appearance, denied the claim, pleaded want of statutory notice, and filed a preliminary objection that the suit was statute barred under Sections 3(1) and (2) of the Public Authorities Limitation Act, Cap 39 and Sections 4, 7 and 8 of the Limitation of Actions Act, Cap 22. The court directed that the objection be argued by written submissions. The 2nd defendant relied on IGA v Makerere University, Gathoni v Kenya Co-operative Creameries and Mehta v Shah on the effect of limitation. The plaintiff countered that Cap 22 did not apply by virtue of Section 42(1)(e), relied on assurances that rent would be paid, invoked Article 159(2)(d) of the Constitution, and argued that public entities cannot acquire property by adverse possession. The court held that Section 6 of Cap 39 makes Part III of Cap 22 applicable, that the claim, having accrued in 2000, contravened Section 3(1) and (2) of Cap 39, and that even against the 1st defendant as an independent commission it would be barred under Section 4(1)(a) and (2) of Cap 22. The preliminary objection was upheld and the suit struck out, with each party bearing its own costs.

Key legal issues

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01

Applicability of the Public Authorities Limitation Act to a claim against the government

Holding

The suit against the government for occupation from the year 2000 is barred under Section 3(1) and (2) of Cap 39

Reasoning

The cause of action arose in 2000 when the officers allegedly took occupation. The suit, filed in 2016, is clearly directed against the government as the Attorney General was made a party. Section 3(1) bars tort claims against government after twelve months and Section 3(2) bars contract claims after three years. The claim for rent and damages falls well outside both periods, so the suit contravenes the Act.

p. 4
02

Whether the Limitation of Actions Act, Cap 22 is excluded by Section 42(1)(e)

Holding

No; Section 6 of the Public Authorities Limitation Act makes Part III of the Limitation of Actions Act applicable, and even against the 1st defendant as an independent commission the suit would be barred

Reasoning

The plaintiff argued Cap 22 did not apply because of Section 42(1)(e). The court held this was not entirely correct since Section 6 of Cap 39 expressly provides that Part III of Cap 22 applies to Cap 39, and Section 43 makes Cap 22 applicable to proceedings by and against the Government. Even if the 1st defendant is an independent commission, the claim would still be barred under Section 4(1)(a) and (2) of Cap 22.

p. 4
03

Whether Article 159(2)(d) on procedural technicalities could save the time-barred suit

Holding

It did not; the objection was upheld notwithstanding the plaintiff's reliance on Article 159(2)(d)

Reasoning

The plaintiff invoked Article 159(2)(d), which requires justice to be administered without undue regard to procedural technicalities. The court did not accept that this overcame the limitation bar, since the claim was barred by statute and, per the authorities relied on, a plaint barred by limitation must be rejected.

p. 3

Legal principles established

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  • A suit against the government founded on a cause of action accruing more than twelve months (tort) or three years (contract) before suit is barred under the Public Authorities Limitation Act, Cap 39, and Part III of the Limitation of Actions Act applies to that Act.
  • The Limitation of Actions Act applies to proceedings by and against the Government as it applies between private persons, subject to stated exceptions.

Court orders

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  1. 1.The 2nd defendant's preliminary objection is upheld
  2. 2.The plaintiff's suit is struck out
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Public Authorities Limitation Act, Cap 39 Laws of KenyaSection 3(1) and (2)
  • Public Authorities Limitation Act, Cap 39 Laws of KenyaSection 6
  • Limitation of Actions Act, Cap 22 Laws of KenyaSections 4, 7 and 8
  • Limitation of Actions Act, Cap 22 Laws of KenyaSections 4(1)(a) and (2)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 42(1)(e)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 43
  • Constitution of KenyaArticle 159(2)(d)
  • Kenya Regiment (Territorial Forces) ActSection 33
  • Government Lands ActSection 136

Cases cited (3)

  • IGA –vs- Makerere University
    [1972] E.A 65
  • Gathoni –vs- Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Mehta –vs- Shah
    [1965] E.A 321
Jurisdiction invoked
First-instance civil suit on land claim; limitation statutes and Article 159(2)(d) of the Constitution considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Haron Onyancha v National Police Service Commission & another [2017] KEELC 3007 (KLR)", Case Analysis (2017). Case No 168 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3007/eng@2017-04-28

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