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ELCDismissedPetition No. 114 of 2015· [2020] KEELC 2765 (KLR)

Charles Rama Amos & 17 others v Josephine Sese Mulatya & 12 others [2020] KEELC 2765 (KLR)

Environment and Land Court
12 May 2020
4,375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' constitutional petition, ruling it was really an old contract dispute filed far too late.

What this practically means

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Executive summary

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Eighteen petitioners claimed they were allocated plots in the Mwembelegeza Settlement Scheme in 1997 and agreed to sell them to the 1st respondent at Kshs.170,000 per plot, receiving only a 10% deposit. They alleged that their plots were nonetheless registered in the names of the 1st to 9th respondents without payment of the balance and without transfer documents, in violation of Articles 27, 40 and 47 of the Constitution. They sought declarations of ownership and expungement of the respondents' registrations. The court framed four issues: whether the petition raised constitutional violations or was an ordinary suit; whether fraud was proved; whether the claim was time barred; and what orders should issue. It found no evidence of discrimination or unfair administrative action, holding that the dispute was essentially an ordinary contractual claim dressed as a constitutional petition. Fraud was not specifically pleaded and proved to the heightened standard required, and the petitioners admitted signing sale agreements and receiving deposits. On limitation, time began running in March 1999 when the allotment letters were withheld; the contract claim (6 years), the fraud claim (3 years) and the land recovery claim (12 years) had all expired by the time of filing in 2012, with no extension of time sought. The petition was dismissed for want of merit with costs to the 1st and 4th to 9th respondents. Judgment was delivered electronically on 12 May 2020 due to the Covid-19 pandemic.

Key legal issues

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01

Whether the petition raised constitutional violations or was an ordinary suit

Holding

The claim was an ordinary suit couched as a constitutional petition; no evidence of violation of Articles 27, 40 or 47 was led

Reasoning

The evidence showed the petitioners were allocated plots like other squatters and opted to sell them. The alleged discrimination could only arise if the plots had not been allocated, and no evidence showed which office denied them a hearing. The complaint was essentially that the balance of the purchase price was unpaid, a contractual dispute.

p. 5
02

Whether fraud/forgery was proved against the Respondents

Holding

No fraud was proved; allegations were not specifically pleaded and proved to the higher standard required

Reasoning

The petitioners admitted entering sale agreements with the 1st respondent before an advocate and receiving Kshs.17,000. None produced an agreement showing a purchase price of Kshs.170,000. The particulars of what was allegedly altered were never stated, making it impossible for the court to identify any fraud against the respondents.

p. 6
03

Whether the claim is time barred

Holding

The claim is time barred: time began running in March 1999, the 6-year contract period expired in 2005/2007, the 3-year fraud period expired in March 2002, and the suit filed in 2012 exceeded the 12-year period for land recovery

Reasoning

The petitioners discovered their names were missing when allotment letters were issued in March 1999 and took no steps until 2007. The petition was filed in August 2012, more than 12 years after the right accrued, and no extension of time was sought. The court viewed the petition form as an attempt to escape the limitation bar.

p. 6

Legal principles established

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  • Fraud must be specifically pleaded and proved to a standard higher than in ordinary civil cases, and cannot be inferred from facts
  • A claim couched as a constitutional petition that is in substance an ordinary contractual dispute will be treated as an ordinary suit subject to limitation
  • Limitation periods under the Limitation of Actions Act: 6 years for contract, 3 years for tort (fraud), 12 years for recovery of land

Court orders

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  1. 1.The petition is dismissed for want of merit
  2. 2.Costs to the 1st and 4th to 9th Respondents
Jurisdiction invoked
Articles 27, 40 and 47 of the Constitution of Kenya and the Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual High Court Practice and Procedure Rules 2006

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, "Charles Rama Amos & 17 others v Josephine Sese Mulatya & 12 others [2020] KEELC 2765 (KLR)", Case Analysis (2020). Petition No. 114 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2765/eng@2020-05-12

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