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ELCStruck OutPetition Case No. 16A of 2019· [2021] KEELC 54 (KLR)

Morris Kyengo Makovu v Kenya Power & Lighting Company Ltd & 3 others [2021] KEELC 54 (KLR)

Environment and Land Court
9 December 2021
7,169 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 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

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Executive summary

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The Petitioner, administrator of the estate of David Makovu Ndambo, petitioned the court alleging that the 1st Respondent, Kenya Power & Lighting Company Ltd, erected a 33KV power line across land parcel Mwala/Mango/179 in 2000 without valid wayleave consent, forging a consent purportedly signed by the deceased who died in 1986. He sought declarations of violation of Articles 40 and 47, compensation of Kshs. 6,273,250/= as special damages, general and exemplary damages, and an order compelling the DPP to investigate the alleged forgery. Only the 1st Respondent entered appearance, contending that consent was obtained from Edward Willy Makovu, the eldest son in occupation, who was compensated, and that the petition filed 19 years later contravened the Limitation of Actions Act and that special damages were not proved. The court framed two issues: whether the petition was time barred, and if not, whether the Petitioner was entitled to the orders sought. Applying Owners of Motor Vessel 'Lillian S', Mukisa Biscuit and James Kanyiita Nderitu, the court held that limitation goes to jurisdiction, that constitutional petitions are not exempt from limitation law, and that the Petitioner's 19-year unexplained delay was inordinate and prejudicial to the 1st Respondent whose witnesses had died. The court distinguished Joan Akinyi Kabasellah as concerning transitional justice. It further held that compelling the DPP to investigate lay outside the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. The petition was struck out with costs.

Key legal issues

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01

Whether the petition, filed 19 years after erection of the power lines, is time barred

Holding

Yes. The delay is inordinate and unexplained and the claim is statute barred under sections 7 and 8 of the Limitation of Actions Act

Reasoning

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.

p. 6
02

Whether the absence of a formal preliminary objection bars a limitation defence

Holding

No; the court entertained the limitation issue as it goes to jurisdiction

Reasoning

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.

p. 4
03

Whether the court can compel the DPP to investigate forgery of the wayleaves consent

Holding

No; the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act does not extend to compelling criminal investigations

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Petition is struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23, 40, 47, 162(2)(b)
  • Constitution of Kenya (repealed)Article 75(1), section 84
  • Limitation of Actions ActSections 7 and 8
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Wayleaves Act Cap 292 (repealed)Section 4
  • Electric Power Act No. 11 of 1997 (repealed)Sections 45 and 46
  • Energy Act, 2019Sections 83, 142, 5C, 171, 173
  • Land Registration Act (repealed)Section 98
  • Land Act No. 6 of 2012Section 148
  • Assessment of Just Compensation Rules 2017Legal Notice No. 283
  • Employment Act, 2007Section 90

Cases cited (23)

  • Peter Mwangi Kabue vs Rural Electrification Authority
    [2018] eKLR
  • Joan Akinyi Kabasella & 2 Others vs Attorney General
    Petition No. 41 of 2014
  • Kenya Power & Lighting Company Ltd vs Josphat P. Kingara
    [2013] eKLR
  • Titus Gatitu Njau vs Municipal Council of Eldoret
    (2015) eKLR
  • Obondo & Another vs Municipal Council of Kisumu
  • John Peter Mangi Kagira vs National Land Commission & Another
    [2019] eKLR
  • Phyllis N. Mbahito vs Kenya Power & Lighting Co. Ltd.
    [2012] eKLR
  • Boaz Rueben Kisagi Shume vs Kenya Power & Lighting Co. Ltd & 71 Others
    [2019] eKLR
  • James Kanyiita Nderitu vs Attorney General & Another
    [2019] eKLR
  • Wellington Nzioka Kioko vs Attorney General
    [2018] eKLR
  • Chyna Oversees Engineering Company Limited vs Isaaq Kichwen Kijo
    [2019] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Ltd vs West End Distributors
    [1969] E.A. 696
  • Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd
    [1989]
  • Gathoni vs Kenya Cooperative Creameries Ltd
    [1982] KLR 104
  • Mehta vs Shah
    [1965] E.A. 321
  • Josephat Ndirangu vs Henkel Chemicals (E.A.) Ltd
    [2013] eKLR
  • Peter Lubale Lubullellah vs Teachers Service Commission
    Petition No. 145 of 2016
  • Ochieng Kenneth K. Ogutu vs Kenyatta University & 2 Others
    High Court Petition Number 306 of 2012
  • Abraham Kaisha Kanzike and Another vs Central Bank of Kenya
  • Charles Gachathi Mboko vs Attorney General
    Civil Case No. 833 of 2009 (O.S.)
  • Njuguna Gathiru vs Attorney General
    [2016] eKLR
  • Smith vs Clay
    1767 Ery R 55, [1767] 3 Bro CC 646 [1767] 29 ER 743
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

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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, "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.