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ELCPartially AllowedELC Petition No. 7 of 2020 (O.S)· [2021] KEELC 821 (KLR)

Bon Opondo & 441 others v Chinese Overseas Engineering Group Company Limited (COVEC) & 3 others [2021] KEELC 821 (KLR)

Environment and Land Court
15 November 2021
EAE. Asati
3,650 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Vihiga court confirmed that constitutional rights petitions in Kenya cannot be blocked by statutory time limits, keeping 442 villagers' compensation claim alive.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Vihiga (Asati, J) disposed of three interlocutory matters arising in a constitutional Petition by Bon Opondo and 441 others, who sought declarations and compensation for damage to houses and structures allegedly caused by the 1st Respondent's excavation and blasting works at Mwoki village quarry during rehabilitation of the Kisumu-Kakamega Road, a contract awarded by the 2nd Respondent. The 2nd and 1st Respondents raised preliminary objections seeking striking out of the Petition: that it was time-barred under section 67(b) of the Kenya Roads Act, which requires actions against the authority to be instituted within twelve months, and that it was defective for want of written authority from all petitioners under Order 1 Rule 13 of the Civil Procedure Rules. The 1st Respondent also applied for extension of time to file its Reply. Framing five issues, the court applied the Mukisa Biscuit test and held both objections were pure points of law properly before it, but then rejected them on the merits. Relying on Safepak Limited v Henry Wambega and related authority, the court held that a constitutional petition under Article 22 is not subject to statutory limitation periods, subject only to Article 24, and that the written-authority requirement in Order 1 Rule 13 applies only to Civil Procedure Rules proceedings, not Article 22 petitions governed by the 2013 Practice and Procedure Rules. The extension-of-time application was allowed, the 1st Respondent given 14 days to file its Reply, each party ordered to bear own costs, and mention fixed for 29th November 2021.

Key legal issues

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01

Whether the notices of preliminary objection qualify as preliminary objections in law

Holding

Yes - they raise pure points of law flowing from the pleadings which, if successful, would dispose of the petition

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court set out the threshold: a preliminary objection must be a pure point of law, arise from the pleadings, be capable of disposing of the suit, and be argued on the assumption that all facts pleaded by the opposite party are correct. The objections here concerned limitation and want of written authority, issues also raised in the 2nd Respondent's Reply to Petition and Replying Affidavit, so they were properly before the court.

p. 4
02

Whether the Petition is time-barred under section 67(b) of the Roads Act

Holding

No - the Petition, being a constitutional petition under Article 22, is not subject to statutory limitation periods

Reasoning

The 2nd Respondent argued the works were completed on 30th October 2018 and the 12-month limitation expired before the Petition was filed in November 2020. The Petitioners relied on authority that there is no time limit for filing constitutional petitions. The court noted the Petition invoked numerous Bill of Rights articles and the Mutunga Rules, and held that fundamental rights enforcement proceedings are not tied to statutory limitation periods, subject only to the limitations in Article 24 of the Constitution.

p. 5
03

Whether the Petition is defective for want of written authority from all petitioners under Order 1 Rule 13(1) and (2)

Holding

No - Order 1 Rule 13 does not apply to constitutional petitions under Article 22

Reasoning

Article 22 permits every person to institute proceedings claiming a right has been violated, including on behalf of another or in the interest of a group or class of persons. The procedure for such petitions is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which contain no requirement for written authority to act. That requirement, though mandatory for Civil Procedure Rules proceedings, is therefore inapplicable to this petition.

p. 5
04

Whether the 1st Respondent's application for extension of time should be allowed

Holding

Yes - the application has merit and the 1st Respondent was granted 14 days to file its Reply

Reasoning

The explanation was a breakdown of communication between the 1st Respondent and its counsel. The court found no interlocutory judgment had actually been entered, only a direction for a hearing date, and noted Rule 16 of the Mutunga Rules governs default and Rule 30 allows extension of time. Allowing the application would enable the 1st Respondent to participate fully and allow all matters in controversy to be canvassed.

p. 5

Legal principles established

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  • A constitutional petition under Article 22 of the Constitution is not subject to limitation periods set by statute, including section 67(b) of the Roads Act
  • The requirement for written authority to act under Order 1 Rule 13 of the Civil Procedure Rules does not apply to constitutional petitions brought under Article 22 and the Mutunga Rules
  • A preliminary objection must be a pure point of law arising from the pleadings, capable of disposing of the suit, and cannot succeed if any fact has to be ascertained or discretion exercised
  • The court may extend time for filing a Reply to Petition under Rule 30 of the Mutunga Rules notwithstanding the 14-day limit in Rule 15

Court orders

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  1. 1.Both Preliminary Objections (the preliminary objection by the 2nd Respondent dated 25th February 2021 and the preliminary objection by the 1st Respondent dated 24th March 2021) are disallowed
  2. 2.The Application dated 17th August 2021 filed by the 1st Respondent is allowed; the 1st Respondent to file Reply to Petition within 14 days of the ruling
  3. 3.Each party to bear own costs
  4. 4.Mention for directions on the Petition on 29th November 2021

Authorities

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Legislation

  • Kenya Roads ActSection 67(b); Section 3
  • Civil Procedure Rules, 2010Order 1 Rule 13(1) and (2)
  • Constitution of KenyaArticles 2, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 35, 40, 42, 43; Article 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 3, 4, 15, 16(1), 16(2), 30
  • Limitation of Actions Act

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors
    (1969) E.A 696
  • Kakuta Maimai Hamisi –vs- Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • Michael Otieno Nyaguthi & 5 others –vs- Kenya National Highways Authority and 5 others
    [2015] eKLR
  • Peter Odongo & Another –vs- Kenya National Highways Authority & 2 others, Council of Governors (Interested Party)
    eKLR
  • Safepak Limited –vs- Henry Wambega & 11 others
    [2019] eKLR
  • Chief Land Registrar and 4 Others –vs- Nathan Tirop Koech and 4 others
Jurisdiction invoked
Articles 22 and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights), brought under Rule 11(a) & 12 of the Protection of Fundamental Rights and Freedoms Practice and Procedure Rules

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, "Bon Opondo & 441 others v Chinese Overseas Engineering Group Company Limited (COVEC) & 3 others [2021] KEELC 821 (KLR)", Case Analysis (2021). ELC Petition No. 7 of 2020 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/821/eng@2021-11-29

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