Duke Mecha Franklin Saisi v Attorney General & another [2018] KEELC 356 (KLR)
The bottom line
#A landowner's compensation claim against KeNHA failed because he sued over two years late — the Kenya Roads Act gives only 12 months.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is statute barred under Section 67(b) of the Kenya Roads Act
Yes - the suit, filed over 2 years after the cause of action arose on 13th November 2014, is bad in law and unsustainable against the 2nd defendant
The 2nd defendant is a state corporation under the Kenya Roads Act, which contains a peremptory limitation clause requiring actions against the Authority to be instituted within 12 months of the act complained of. The general Limitation of Actions Act ceases to apply where a statute carries its own limitation clause. The plaintiff did not deny filing outside the limit and never sought leave to enlarge time. The court distinguished P.N.M. v KNH, where the plaintiff had been granted leave to apply for extension of time.
Whether Article 159(2)(d) and Article 40 could save the suit from the limitation bar
No - procedural provisions serve certainty and fairness and cannot be overridden by the oxygen principles; the right to property is limitable by reasonable and justifiable legislation
The court applied the Supreme Court's endorsement in Obado of Kiage JA's dictum in Salat that Article 159 was never meant to create an anarchical free-for-all or to aid parties who flout timelines. On Article 40, applying Mtana Lewa, the right to property is not among non-derogable rights and may be limited by legislation such as the Kenya Roads Act's limitation provision.
Whether the suit should be dismissed for want of prosecution
The issue became moot once the suit was held statute barred; in any event the 1st defendant was nominal and need not have participated
Having struck out the suit on the preliminary objection, the court found the want-of-prosecution application of no consequence. The court observed that the 2nd defendant, whose activities provoked the suit, was represented by counsel, and the 1st defendant was only a nominal defendant as principal legal advisor of the Government.
Legal principles established
#- Where a statute establishes a body corporate and contains its own limitation-of-actions clause in peremptory terms, proceedings against that body must be commenced within the statutory period and the general limitation law does not apply
- Article 159(2)(d) cannot be invoked to circumvent rules of procedure and statutory timelines; a litigant who has not sought extension of time cannot rely on it to save a time-barred suit
- The constitutional right to property under Article 40 may be limited by legislation where the limitation is reasonable and justifiable
Court orders
#- 1.The 2nd defendant's preliminary objection succeeds
- 2.The plaintiff's suit is struck out
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court Act, section 3(1) (overriding objectives); jurisdiction contested by way of preliminary objection under Section 67 of the Kenya Roads Act No. 2 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duke Mecha Franklin Saisi v Attorney General & another [2018] KEELC 356 (KLR)", Case Analysis (2018). Not stated in judgment (suit filed 18th April 2017; plaint dated 16th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/356/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.