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ELCStruck OutNot stated in judgment· [2020] KEELC 2488 (KLR)

Willimary Development Limited v National Land Commission & another [2020] KEELC 2488 (KLR)

Environment and Land Court
7 May 2020
EOE. O. Obaga
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A landowner lost a Kshs.84 million compensation interest claim because they sued Kenya National Highways Authority more than twelve months late.

What this practically means

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Executive summary

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The Plaintiff, registered owner of two properties (LR No.27799/2 and LR No.27799/3), had them compulsorily acquired around 2011 under the repealed Land Acquisition Act for the Nairobi–Thika Road (Thika Super Highway) project, with compensation awarded at a total of Kshs.84,531,265. The 2nd Defendant paid by instalments, clearing the principal of Kshs.33,807,500 on 27 February 2017 but refusing interest. Earlier judicial review proceedings to compel payment were struck out for lack of jurisdiction, prompting this suit for the accrued interest. The 2nd Defendant filed a preliminary objection on 14 June 2018 asserting the suit was statute barred under section 67 of the Kenya Roads Act, which requires actions against an Authority to be commenced within twelve months of the act complained of, or within six months after cessation of a continuing injury. The court, Obaga J, framed a single issue: whether the suit was statute barred. It held that since the acquisition was undertaken on behalf of the 2nd Defendant under section 23(3) of the Roads Act, the limitation regime of section 67 applied. The cause accrued on 29 May 2012 at the latest; alternatively, even treating interest as a continuing injury, suit filed on 3 April 2018 exceeded six months from 27 February 2017. Following Sumac Development Company Ltd v KNHA and John Kibor Kipkorir v KURA, the preliminary objection was upheld, the suit struck out with costs to the 2nd Defendant.

Key legal issues

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01

Whether section 67(b) of the Kenya Roads Act applies to a compensation claim arising under the repealed Land Acquisition Act

Holding

The limitation period in section 67(b) applies; the suit was time-barred

Reasoning

The court held the 2nd Defendant is established under the Roads Act with duties spelt under that Act, and the acquisition was done on its behalf, it bearing the costs under section 23(3). The claim against it therefore fell under section 67. Accrual was 29 May 2012 (or at latest six months after payment of principal in February 2017); suit filed 3 April 2018 was outside both periods.

p. 2
02

Whether accrued interest on compensation constitutes a continuing injury extending the limitation period

Holding

Even if interest were a continuing injury, the claim was still filed late

Reasoning

The court assumed arguendo that interest is a continuing injury, in which case the Plaintiff had six months from cessation (payment of the principal on 27 February 2017) to sue. The suit filed on 3 April 2018 exceeded even that period, so the claim failed either way.

p. 2

Legal principles established

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  • Actions against a roads Authority under section 67 of the Kenya Roads Act must be instituted within twelve months of the act, neglect or default complained of, or within six months after cessation of a continuing injury

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Plaintiff's suit struck out
  3. 3.Costs to the 2nd Defendant

Authorities

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Legislation

  • Kenya Roads Actsection 67 (including 67(a) and 67(b))
  • Land Acquisition Act (now repealed)section 19(1)
  • Land Acquisition Act (now repealed)section 16(1)
  • Roads Actsection 23(3)

Cases cited (2)

  • Sumac Development Company Limited Vs Kenya National Highways Authority & 2 Others
    NBI HCCC No.348 of 2013
  • John Kibor Kipkorir (suing as the administrator of the Estate of William Kibor Ruto also known as Chebor Ruto Vs Kenya Rural Roads Authority
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; suit founded on the Land Acquisition Act (repealed) and the Kenya Roads Act

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, "Willimary Development Limited v National Land Commission & another [2020] KEELC 2488 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2488/eng@2020-05-07

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