Morris Kyengo Makovu v Kenya Power & Lighting Company Ltd & 3 others [2021] KEELC 54 (KLR)
The bottom line
#The Environment and Land Court struck out a family's 19-year-delayed compensation claim against Kenya Power, confirming that constitutional petitions must still be filed promptly.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition, filed 19 years after erection of the power lines, is time barred
Yes. The delay is inordinate and unexplained and the claim is statute barred under sections 7 and 8 of the Limitation of Actions Act
The court found that the cause of action arose in 2000 and the Petitioner gave notice of intention to sue in 2012 but filed suit only in 2019. Constitutional petitions have no specified limitation period, but delay must be explained; unexplained delay of 19 years prejudices the respondent, whose wayleaves officer is deceased and records untraceable. Equity does not aid the indolent.
Whether the absence of a formal preliminary objection bars a limitation defence
No; the court entertained the limitation issue as it goes to jurisdiction
The Petitioner argued the 1st Respondent had not filed a formal preliminary objection. The court treated limitation as an objection to jurisdiction, citing Mukisa Biscuit and Bosire Ongero, and addressed it on the merits notwithstanding the procedural objection.
Whether the court can compel the DPP to investigate forgery of the wayleaves consent
No; the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act does not extend to compelling criminal investigations
The court examined the constitutional and statutory anchors of its jurisdiction and held that ordering the DPP to commence criminal investigations and proceedings over the alleged forgery falls outside disputes relating to environment and land.
Legal principles established
#- Not every suit commenced by way of constitutional petition is exempt from the Limitation of Actions Act; claims for recovery of land anchored on Article 40 are subject to sections 7 and 8 of the Act
- Constitutional petitions are not a vehicle to circumvent limitation law; delay must be explained and considered case by case
- Unexplained inordinate delay in lodging a constitutional petition is inordinate and unjustified and the court will not entertain the claim
Court orders
#- 1.The Petition is struck out with costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morris Kyengo Makovu v Kenya Power & Lighting Company Ltd & 3 others [2021] KEELC 54 (KLR)", Case Analysis (2021). Petition Case No. 16A of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/54/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.