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ELCDismissed· [2022] KEELC 531 (KLR)

Republic of Kenya v National Land Commission & another; Ex Parte Registered Trustees Simba Union Club [2022] KEELC 531 (KLR)

Environment and Land Court
17 March 2022
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Claims against Kenyan road authorities for unpaid compensation must be filed within twelve months, or the court cannot hear them at all.

What this practically means

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Executive summary

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The Ex-parte Applicant's land, L.R No.209/6559/13, was compulsorily acquired on 16th October 2008. It filed a Notice of Motion dated 25th November 2016 seeking an order of mandamus compelling the 1st and 2nd Respondents to pay Kshs.16,973,135/-, comprising a balance of Kshs.7,362,300/- in principal compensation, Kshs.9,610,835/- in interest from December 2008 to 31st July 2016, and further interest at 12% per annum from 1st August 2016 until payment in full. The 2nd Respondent filed a notice of preliminary objection dated 27th July 2020, contending that the application was statute barred under Section 67(b) of the Kenya Roads Act, No. 2 of 2007, which requires actions against a roads authority to be instituted within twelve months, or within six months of cessation in the case of a continuing injury. The court framed two issues: whether the claim was statute barred, and whether unpaid interest constituted a continuing injury. The court held that Article 40 of the Constitution cannot be read in isolation to disapply the statutory limitation, that the claim filed in 2016 was out of time, and that even treating unpaid interest as a continuing injury, the six-month window ran from payment of the compensation balance on 5th June 2017 and had long expired. Following John Kibor Kipkorir and Willimary Development Limited, the court upheld the preliminary objection, dismissed the Notice of Motion dated 25th November 2016, and ordered each party to bear its own costs. Dated, signed and delivered at Nairobi on 17th March 2022 by L. Komingoi, Judge.

Key legal issues

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01

Whether the Ex parte Applicant's claim is statute barred under Section 67(b) of the Kenya Roads Act

Holding

The claim is statute barred; the action was not instituted within twelve months of the act, neglect or default complained of, so the court lacks jurisdiction to hear it.

Reasoning

The court applied Section 67(b) of the Kenya Roads Act, which requires actions against a roads authority for acts done or public duties to be instituted within twelve months. The land was acquired in 2008 and the applicant filed the judicial review application in 2016, far outside the limitation window. Reliance on Article 40 of the Constitution did not assist, as Article 40 cannot be read in isolation to override the statutory limitation. Following prior decisions, the objection was upheld and the motion dismissed.

p. 2
02

Whether the interest payable constitutes a continuing injury or damage under Section 67(b)

Holding

Even if interest were a continuing injury, the claim was filed more than six months after the compensation balance was paid on 5th June 2017, and is therefore unsustainable.

Reasoning

Section 67(b) allows a six-month window for continuing injury or damage after its cessation. The court assumed, without deciding, that unpaid interest on a compensation award could be a continuing injury; even then, the cessation occurred when the balance of compensation was paid on 5th June 2017, and the claim was not filed within six months thereafter. The court followed Willimary Development Limited in holding such a claim time barred.

p. 2

Legal principles established

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  • Actions against a roads authority for acts done or public duties owed must be instituted within twelve months under Section 67(b) of the Kenya Roads Act, and failure to do so ousts the court's jurisdiction.
  • Even if interest on a compensation award were treated as a continuing injury or damage, the claim must be filed within six months after the cessation of that injury (i.e. after payment of the compensation).
  • Article 40 of the Constitution cannot be read in isolation so as to disapply the statutory limitation period applicable to actions against road authorities.
  • Where land is compulsorily acquired on behalf of a roads authority, that authority bears all costs in relation thereto under Section 23(3) of the Kenya Roads Act.

Court orders

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  1. 1.The preliminary objection dated 27th July 2020 is upheld.
  2. 2.The Notice of Motion dated 25th November 2016 is dismissed.
  3. 3.Each party to bear own costs.

Authorities

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Legislation

  • Kenya Roads ActSection 67(b)
  • Kenya Roads ActSection 23(3)
  • Land Acquisition Act (Cap 295, now repealed)Sections 16(1) and 19(1)
  • Constitution of Kenya, 2010Article 40

Cases cited (9)

  • Sumac Development Company Limited v Kenya National Highways Authority & 2 Others
    [2017] eKLR
  • WiIllmary Development Ltd v The National Land Commission & Kenya National Highways Authority
    [2020] eKLR
  • Law Society of Kenya v Kenya Revenue Authority & Another
    [2017] eKLR
  • John Kibor Kipkorir (Suing as the administrator of William Kibor Ruto a.k.a Chebor Ruto) v Kenya Rural Roads Authority
    [2017] eKLR
  • Elizabeth Wambui Githinji and 29 others v Kenyan Urban Roads Authority and 4 others
    [2019] eKLR
  • Benson Ruiyi Njane v Kenya Rural Roads Authority & 36 others
    [2016] eKLR
  • Republic v Kenya National Highways Authority Ex-parte Tangerine Investments Limited
    [2017] eKLR
  • Space Geo Enterprises Limited v Kenya National Highways Authority
    [2019] eKLR
  • Willimary Development Limited v National Land Commission & another
    [2020] eKLR
Jurisdiction invoked
Judicial review jurisdiction (order of mandamus) under Article 40 of the Constitution; limitation challenged under Section 67(b) of the Kenya Roads Act, No. 2 of 2007

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, "Republic of Kenya v National Land Commission & another; Ex Parte Registered Trustees Simba Union Club [2022] KEELC 531 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/531/eng@2022-03-17

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