Kenya National Chamber of Commerce & Industry - KNCC1 (Muranga Chapter) & 2 others v Delmonte Kenya Ltd & 3 others; County Government of Kiambu (Interested Party) (Environment and Land Case 86 of 2018) [2020] KEELC 2258 (KLR)
The bottom line
#The Environment and Land Court dismissed a 125-year-old land claim as too late, confirming that Kenya's 12-year limit on land claims applies even to historical injustices.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit, founded on a 1895 colonial land alienation, is time barred and whether the time bar ousts jurisdiction
The claim is time barred under section 7 of the Limitations of Actions Act; the exemption in section 15 of the NLC Act applies only to the NLC; the Court therefore lacks jurisdiction and must down its tools
The cause of action arose in 1895; even computing time from the commencement of the Limitations of Actions Act in 1968, the 12-year period expired in 1980. No fraud, mistake or ignorance was pleaded under section 26, nor leave sought under section 27. Section 15(3)(b)(ii) of the NLC Act permits statute-barred historical injustice claims to be addressed by the NLC, not the ELC. Lacking jurisdiction, the Court must down its tools.
Whether the 1st Plaintiff, described as a branch of the Kenya National Chamber of Commerce & Industry, has capacity to sue under Order 4 Rule 1(2) and (4) of the Civil Procedure Rules
The suit offends Order 4 Rule 1(2) and (4): the 1st Plaintiff is not an incorporated body, no verifying affidavit was sworn by a duly authorised officer, and no representative authority was shown
A certificate of incorporation of the national Chamber was annexed but the 1st Plaintiff is only a branch; no evidence showed the branch's mandate to sue for the national entity or that the 2nd and 3rd Plaintiffs were members or authorised officials. An unincorporated body cannot sue in its own name, and the verifying affidavit requirements were not met.
Whether the ELC can entertain historical land injustice claims notwithstanding the NLC's mandate under Article 67 and section 15 of the NLC Act
Yes - the Court's jurisdiction over historical land injustice claims is not ousted; such a claim fits within a claim to title to land
Article 162(2)(b) of the Constitution and section 13 of the ELC Act confer wide powers over land disputes. Following Safepak Limited v Henry Wambega and Chief Land Registrar v Nathan Tirop Koech, the Court held that a court may hear historical injustice claims whether or not the NLC is seized of the matter. However, this did not save the suit, which failed on limitation and capacity.
Legal principles established
#- The jurisdiction of the ELC to hear historical land injustice claims has not been ousted by Article 67 of the Constitution or the NLC Act
- The limitation exemption under section 15 of the NLC Act applies to the NLC and not to the ELC
- A claim to recover land must be brought within 12 years under section 7 of the Limitations of Actions Act, and no exemption was pleaded under sections 26 or 27
- An unincorporated body has no legal capacity to sue in its own name and must sue through its registered officials or in a properly authorised representative suit
Court orders
#- 1.The grounds of opposition and written submissions filed by Kandara Residents Association, a stranger to the suit, are struck out from the record
- 2.The Preliminary Objection dated 13/12/18 succeeds
- 3.The Notice of Motion dated 10/12/18 is dismissed
- 4.The suit is dismissed entirely
- 5.Costs payable by the Plaintiffs in favour of the 1st Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Chamber of Commerce & Industry - KNCC1 (Muranga Chapter) & 2 others v Delmonte Kenya Ltd & 3 others; County Government of Kiambu (Interested Party) (Environment and Land Case 86 of 2018) [2020] KEELC 2258 (KLR)", Case Analysis (2020). ELC Case of 2018 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2258/eng@2020-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.