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ELCStruck OutPetition dated 26th July 2018 (Meru)· [2020] KEELC 2969 (KLR)

Naitore M'iburi & another v Attorney General & 2 others; Sebastian Kaaria (Interested Party) [2020] KEELC 2969 (KLR)

Environment and Land Court
30 April 2020
LMLucy N. Mbugua
6,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru struck out a 2018 constitutional petition over land sold in 2002, because it was too late, already litigated, and not a real constitutional issue.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC J) disposed of preliminary objections by the 3rd respondent bank and the interested party purchaser to a petition filed on 26th July 2018. The petitioners, mother and daughter, alleged that the bank fraudulently created a second charge over land parcel Nkuene/Taita/252 without consent, manipulated the loan account, secretly prosecuted Meru HCCC No. 68 of 1997 which resulted in judgment and the auction of the land to the interested party on 18th February 2002, and colluded with their advocate to withdraw HCCC No. 43 of 2002. They sought injunctive, declaratory and constitutional reliefs and damages. The court framed three issues: whether the petition met the constitutional threshold, whether it was time barred under sections 7 and 17 of the Limitation of Actions Act, and whether it was res judicata. The court held the petition was in substance a private land-ownership and fraud dispute dressed as a constitutional petition, an abuse of process since title impeachment lay under sections 25 and 26 of the Land Registration Act. The claim, filed 16 years after registration of the interested party, exceeded the 12-year limitation period, and constitutional petitions cannot circumvent limitation law nor rely on unexplained delay or blame on advocates. The same issues had been litigated in HCCC No. 68 of 1997 and withdrawn in HCCC No. 43 of 2002, making the petition res judicata; the court could not sit on appeal over a horizontal court's judgment. The preliminary objections were upheld and the petition struck out with costs to the respondents and the interested party.

Key legal issues

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01

Whether the petition disclosed a constitutional issue

Holding

The petition was a disguised land-ownership/redeemption dispute founded on fraud, not a genuine constitutional claim

Reasoning

The court traced the petition's allegations to fraud in the creation of a further charge and mismanagement of the loan account, concluding the petitioners sought to redeem the property through a constitutional vehicle. Impeachment of the interested party's registered title fell under sections 25, 26 of the Land Registration Act and belonged in ordinary civil proceedings.

p. 5
02

Whether the petition was time barred

Holding

Yes; the cause of action accrued in 2002 and the petition filed in 2018 exceeded the 12-year limit under sections 7 and 17 of the Limitation of Actions Act

Reasoning

Registration of the interested party occurred on 14.3.2002; 16 years had elapsed by 2018. Citing authority, the court held that the 2010 Constitution neither extends nor revives old causes of action and that constitutional petitions cannot circumvent limitation statutes; no adequate explanation for delay was offered.

p. 6
03

Whether the petition was res judicata

Holding

Yes; the same issues and parties were litigated in Meru HCCC No. 68 of 1997 and HCCC No. 43 of 2002

Reasoning

HCCC 68 of 1997 ended in judgment for the bank leading to the auction, and HCCC 43 of 2002 was withdrawn. The issues now raised properly belonged in those suits; adding the 1st and 2nd respondents could not defeat res judicata, and this court could not sit on appeal over a decision of a court with horizontal jurisdiction.

p. 8

Legal principles established

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  • A constitutional petition cannot be used to circumvent the law on limitation of actions; delay must be explained independently of the 2010 Constitution
  • Private land-ownership disputes must be pursued through ordinary statutory mechanisms, not dressed up as constitutional petitions
  • A registered proprietor's title can only be impeached on the grounds in section 26 of the Land Registration Act
  • Parties cannot evade res judicata by adding new parties or causes of action

Court orders

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  1. 1.Preliminary objections by the 3rd respondent and the interested party upheld with costs
  2. 2.Petition struck out with costs to the respondents and the interested party

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Sections 7 and 17
  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Land Registration ActSections 25, 26(1)(a) & (b)
  • Civil Procedure RulesOrder 21 rule 1
  • EAC TreatyArticle 30(2) (as quoted from Omar Awadh)

Cases cited (45)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR
  • E.T v Attorney General & another
    (2012) eKLR
  • Mukuru Munge v Florence Shingi Mwawana & 2 others
    (2016) eKLR
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    (2017) eKLR
  • Omondi v National Bank of Kenya Limited and 2 others
    (2001) KLR 579
  • James Kanyiita Nderitu v Attorney General & another
    (2019) eKLR
  • Mtana Lewa v Kahindi Mwagandi
    (2015) eKLR
  • Mercy Waithira v United Insurance Company Limited Statutory Manager & others
    (2019) eKLR
  • Ngugi v Kinyanjui & 3 others
    (1989) KLR 146
  • Richard Nduati Kariuki v Leonard Nduati Kariuki & another
    (2006) eKLR
  • Wiliam Koros (legal Personal Representative of Elijah C.A Koros) v Hezekiah Kiptoo Komen & 4 others
    (2015) eKLR
  • Ventaligio International SA Luxembourg and another v Registrar of Companies & 6 others
    HCCC Constitution Petition No. 410 of 2012
  • Bellevue Development Company Ltd and Hon. Justice Francis Gikonyo & 3 others and Kenya Commercial Bank & 3 others
    C.A No. 239 of 2017 Nairobi
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) E.A 696
  • Nathaniel Kihiu v Housing Finance
    (2018) eKLR
  • Cosmas Mrombo Moka v Cooperative Bank of Kenya Limited & another
    (2018) eKLR
  • Kiluwa Limited & another v Commission of Lands & 3 others
    (2015) eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    (2016) eKLR
  • National Bank of Kenya Limited v Peter Kipkoech Korat and another
    (2005) eKLR
  • The Tee Gee Electricals & Plastics Co. Ltd v Kenya Industrial Estates
    Kisumu CACA No. 333 of 2001
  • State of Maharashtra and Another v National Construction Company Bombay
    Supreme Court civil appeal no. 1497 of 1996
  • Okiya Omtatah Okoiti & another v Attorney General & 6 others
    (2014) eKLR
  • John Mugure Mbogo v Chief Kenya Defence Forces & another
    (2018) eKLR
  • Peter N. Kariuki v Attorney General
    (2014) KLR, Civil Appeal No. 79 of 2012
  • Kamlesh Mansuklal Damji Pattni & another v Republic
    (2013) eKLR
  • Wachira Weheire v AG
    Misc. Civil Case No. 1184/03 (OS)
  • Anarita Karimi Njeru v Republic
    (1976–1980) KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Redington (Uganda) Limited v Office of the Attorney General & another
    (2018) eKLR
  • Abdullah Mangi Mohammed v Lazarus Beja & 5 others
    (2012) eKLR
  • Anne Wawuda & 3 Others v Kenya Railways Corporation & another
    (2015) eKLR
  • Kariuki & others v Dawa Pharmaceuticals Company Limited & others
    (2007) E.A 235
  • Attorney General of Uganda & Another v Omar Awadh & 6 Others
    East African Court of Justice appeal case No. 2 of 2012, (2013) eKLR
  • Popat Kotecha Property v State Bank of India Staff
    SC, Civil Appeal No. 3460 of 2000
  • Peter Kimani Njenga v Mugo Kamabuni Mugo & 3 others
    (2018) eKLR
  • Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    (2015) eKLR
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Peter Lubale Lubullellah v Teachers Service Commission
    Petition No. 145 of 2016
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & 3 others
    [2013] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Njangu v Wambugu and Another
    Nairobi HCCC No. 2340 of 1991 (Unreported)
  • Evangeline Wanja Nahaman & anor v Naitore M'iburi
    Nkubu Civil Case No. 56 of 1996
  • National Bank of Kenya Limited v Mary Ngugi Nkatha
    Meru HCCC No. 68 of 1997
  • Naitore M'Iburi & Mary Ngugi Nkatha v National Bank of Kenya – Meru Branch & Sebastian Kaaria
    HCCC No. 43 of 2002
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution (constitutional petition enforcement jurisdiction); Article 159(2)(b) cited on expeditious justice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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, "Naitore M'iburi & another v Attorney General & 2 others; Sebastian Kaaria (Interested Party) [2020] KEELC 2969 (KLR)", Case Analysis (2020). Petition dated 26th July 2018 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2969/eng@2020-04-30

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