The 172 Residents within Lake Bogoria National Reserve & 170 Others v 1st Respondent & 7 Others (Preliminary Objection)
The bottom line
#The Environment and Land Court dismissed an attempt to throw out 171 residents' compensation petition, confirming that time limits and technical objections cannot easily block constitutional land rights claims in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Capacity/locus standi of the Petitioners
Although the 1st Petitioner's capacity may be challenged as it is not a legal person, the 2nd to 171st Petitioners, who sued in their own names under the Further Amended Petition, have capacity under Article 22 of the Constitution to pursue the petition.
The original petition named a non-legal person as petitioner, but the Further Amended Petition of 6th May 2019 introduced 170 individual petitioners suing in their own names. Article 22(1) entitles every person to move the court for redress of infringed rights. The authority in Kituo Cha Sheria applied only to the 1st Petitioner, so the objection on capacity failed against the individual petitioners.
Whether the claim is statute-barred under the Limitation of Actions Act
The limitation ground fails because the Limitation of Actions Act does not apply to constitutional petitions alleging violation of rights and freedoms, per the binding Court of Appeal decision in Chief Land Registrar & 4 Others v Nathan Tirop Koech & 4 Others [2018] eKLR.
The 7th Respondent argued the claim arose over 50 years ago and was time-barred under Section 7 of the Limitation of Actions Act. The court held that the post-2010 Court of Appeal decision that the Limitation of Actions Act does not apply to violations of constitutional rights is binding on it, and therefore the limitation ground of the objection must fail.
Whether the court has jurisdiction over the petition vis-à-vis the National Land Commission
The court has jurisdiction to hear and determine the petition pursuant to Articles 22(1), 23(1) and (3), 162(2)(b) and 165(5)(b) of the Constitution; the National Land Commission is without jurisdiction over the matters raised.
The respondents argued that Article 67(3) of the Constitution, Section 15 of the National Land Commission Act and Part VIII of the Land Act vested jurisdiction in the National Land Commission. The court held that the matters invoked (Articles 10, 19, 20, 21, 23, 27, 40, 47, 48 and 50) are constitutional questions best dealt with through a petition, and that determinations of the type in Bahola Mkalindi Rhigho are for the court since the Commission lacks jurisdiction.
Whether the claim should have been brought as an ordinary suit rather than a constitutional petition
The petition properly invokes the Bill of Rights and those matters are best dealt with through a petition, not an ordinary suit.
The 7th Respondent contended the petition was a compensation claim clothed as a rights violation. The court found that paragraphs 16, 17, 18, 26, 30 and 39 of the Further Amended Petition invoke multiple constitutional provisions, which are matters best dealt with through a petition. The objection ground therefore failed.
Proprietary interest over the suit land
The question whether the Petitioners hold proprietary interests is one requiring ascertainment of facts and cannot be determined on a preliminary objection; the origin of the claim is set out in paragraphs 9 to 12 of the Further Amended Petition.
The court noted that the claim is grounded on the repealed Constitution and the Trust Land Act regarding setting apart of trust land without prompt and full compensation, and that such determinations are for the court, the National Land Commission being without jurisdiction. The question of proprietary interest could not be resolved in limine on a pure point of law.
Legal principles established
#- The Limitation of Actions Act does not apply to proceedings for violation of rights and freedoms guaranteed under the Constitution, per the binding Court of Appeal decision in Chief Land Registrar v Nathan Tirop Koech.
- Every person has the right under Article 22(1) of the Constitution to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Court orders
#- 1.The 1st Respondent's preliminary objection dated the 29th October, 2019 is dismissed with costs to abide the outcome of the petition.
- Jurisdiction invoked
- Articles 22(1), 23(1) and (3), 162(2)(b) and 165(3)(b) and (5)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The 172 Residents within Lake Bogoria National Reserve & 170 Others v 1st Respondent & 7 Others (Preliminary Objection)", Case Analysis (2021). Not stated in judgment (Petition dated 3rd December 2018, further amended 6th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4732/eng@2021-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.