East Africa Portland Cement Company Limited v Attorney General [2021] KEELC 3371 (KLR)
The bottom line
#The Environment and Land Court dismissed Savannah Cement's bid to nullify the Ndung'u Report recommendations on its 22 land parcels, citing weak evidence and a 15-year delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Commission breached natural justice and fair administrative action
Not established on the evidence; the Petitioner did not produce the full Report and proceedings to show it was not afforded a hearing
The Petitioner alleged it was condemned unheard, invoking audi alteram partem under Section 3(3) and Section 7 of the Commissions of Inquiry Act. However, it did not produce the full Report and proceedings, nor show it requested and was refused access to them, so the court could not conclude the Commission failed to invite representations.
Whether the recommendations infringed Article 40 property rights
No, because the titles had not been revoked; the Report contained only recommendations subject to investigations
The Report merely recommended revocation or investigation. Institutions such as the EACC launched investigations and filed suits where evidence existed. Since the Petitioner's titles had not been revoked on the basis of the Report, its Article 40 rights were not infringed by the recommendations themselves.
Whether the Petitioner proved lawful allocation of the 22 parcels
It did not; only three titles were annexed, without supporting documents showing the allocation process
The Petitioner claimed lawful allocation by the Commissioner of Lands between 1955 and 1997 but annexed only three titles and no letters of allotment or evidence of the process followed. The court therefore could not find that the parcels were regularly allocated or purchased.
Whether the 15-year delay in challenging the Report was fatal
Yes; the delay was inordinate and unexplained
The Report has been public since 2004, over 15 years before the Petition. The Petitioner gave no explanation for the delay, yet some recommendations had been acted upon. Following Wellington Nzioka Kioko, unexplained inordinate delay defeats a constitutional petition.
Legal principles established
#- The Ndung'u Commission Report contained recommendations, not binding resolutions, and was to be implemented within existing legal structures including investigations
- Although there is no limitation period for constitutional petitions, inordinate delay without plausible explanation defeats a petition
Court orders
#- 1.The Petition dated 3rd July, 2019 was dismissed
- 2.No order as to costs
- On appeal from
- High Court
- Jurisdiction invoked
- Transferred to the Environment and Land Court by High Court ruling following a preliminary objection on jurisdiction; petition brought under the Constitution (Articles 40, 47, 35(2))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East Africa Portland Cement Company Limited v Attorney General [2021] KEELC 3371 (KLR)", Case Analysis (2021). Petition dated 3rd July, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3371/eng@2021-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.