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ELCOtherConstitutional Petition E002 of 2022· [2023] KEELC 18690 (KLR)

Yegon (Suing as the Administrator of the Estate of Kipyegon Arap Kirui - Deceased) v Ekatera Tea Company Limited (Formerly Unilever Tea Kenya Limited) & 2 others

Environment and Land Court
13 July 2023
5,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (M.C. Oundo, J) determined a preliminary objection raised by Ekatera Tea Company Limited, joined by the Chief Land Registrar and the Attorney General, against a constitutional petition seeking recovery of ten acres of land allegedly fraudulently excised from the estate of Kipyegon Arap Kirui in the 1960s and now occupied by the 1st Respondent's premises. The respondents argued the petition was time-barred under Section 7 of the Limitation of Actions Act, having been filed some sixty to seventy years after the alleged alienation, and that claims of historical land injustice fell exclusively within the mandate of the National Land Commission under Article 67(e) of the Constitution and Section 15 of the National Land Commission Act. The petitioner countered that the cause of action accrued only in 2017 upon discovery of the fraud, that the NLC had by letter of 26 September 2017 disclaimed jurisdiction over a dispute involving a private company, and that no limitation period applies to constitutional rights claims. The court framed three issues: jurisdiction, applicability of limitation law to historical injustices, and the merit of the objection. Following the Court of Appeal decisions in Chief Land Registrar v Nathan Tirop Koech and Safepak Limited v Henry Wambega, the court held that the ELC has jurisdiction over historical injustice claims whether or not the NLC is seized of the matter, and that limitation periods do not apply to constitutional rights claims absent express constitutional provision, provided delay is not inordinate. Finding no inordinate delay, the court dismissed the preliminary objection and grounds of opposition with costs and directed that the petition be mentioned for directions towards an expedited hearing.

Key legal issues

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01

Jurisdiction of the ELC over historical land injustice claims vis-à-vis the National Land Commission

Holding

The ELC has jurisdiction; the NLC's mandate under Article 67(2)(e) is not exclusive and Section 15(3)(b) of the NLC Act permits the ELC to deal with historical injustice claims.

Reasoning

Relying on the Court of Appeal in Chief Land Registrar v Nathan Tirop Koech, the court held that if the NLC had initial and exclusive mandate, all present land injustice cases would go only to the NLC, rendering the ELCs redundant, which was not intended. Nothing in the Constitution or the NLC Act ousts the High Court's jurisdiction over historical injustice claims. Whether the NLC actually dealt with the Petitioner's grievance was a matter of evidence for the hearing, not a preliminary point.

p. 8
02

Whether Section 7 of the Limitation of Actions Act bars a historical injustice petition

Holding

Section 7 does not apply; there is no limitation period for constitutional claims of rights violations, though delay must not be inordinate and must be explained.

Reasoning

The court adopted Chief Land Registrar v Koech and James Kanyita Nderitu v Attorney General: fundamental rights cannot be tied to the shackles of the Limitation of Actions Act, subject to Article 24. The Petitioner discovered the alleged fraud in 2017 and instituted proceedings soon after, so there was no inordinate delay and the claim was not defeated by laches.

03

Merit of the Preliminary Objection

Holding

The Preliminary Objection and Grounds of Opposition lacked merit and were dismissed with costs.

Reasoning

Both limbs of the objection (limitation and exclusive NLC jurisdiction) failed. The extent of the NLC's engagement with the grievance was evidentiary and could not dispose of the suit preliminarily, and limitation does not bar constitutional rights claims.

Legal principles established

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  • A court has jurisdiction to hear and determine any claim relating to historical land injustice whether or not the NLC is seized of the matter.
  • Limitation periods in the Limitation of Actions Act do not apply to constitutional claims for violation of rights and freedoms unless expressly stated in the Constitution.
  • A preliminary objection must be a pure point of law capable of disposing of the suit without ascertaining facts.

Court orders

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  1. 1.The Preliminary Objection and the Grounds of Objection raised by the Respondents are dismissed with costs.
  2. 2.The Petition to be mentioned with a view to giving directions for an expedited hearing and determination.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67(e), 67(2)(e), 62, 64, 162, 24, 27(1), 40
  • Limitation of Actions ActSections 7, 26, 27, 27(1)
  • National Land Commission ActSections 15, 15(3)(b)
  • Land Registration ActSection 101
  • Civil Procedure Actinherent discretionary powers
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 3(8)

Cases cited (22)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a point of law pleaded or arising by clear implication.

  • Oraro vs Mbaja
    [2005] eKLR

    Law relating to preliminary objections.

  • Gathoni vs Kenya Co-operative Cremires Ltd
    (1982) KLR

    Limitation period for recovery of land.

  • Rawal vs Rawal
    (1990) KLR 275

    Limitation period for recovery of land.

  • Edward Moonge Lengusuranga vs James Lanaiyara & another
    [2019] eKLR

    Time-bar of land recovery claims.

  • Morris Kyengo Makovu vs Kenya Power & Lighting Company Ltd & 3 others
    [2021] eKLR

    Constitutional petition cannot circumvent the Limitation of Actions Act.

  • Owners of the Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction must be derived from the Constitution or statute.

  • Samuel Kamau Macharta & Another vs Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    NLC's mandate over historical land injustices.

  • Maurice Oketch Owiti vs The Honorable Attorney General
    [2016] eKLR

    Inordinate delay in filing suit without explanation is prejudicial.

  • Benjoh Amalgamated & Another vs Kenya Commercial Bank Limited
    [2007] eKLR

    Constitutional reference may be struck out in limine if time-barred, frivolous or abuse of process.

  • Karaini Investment Limited vs National Land Commission & 2 Others
    [2021] eKLR

    NLC has no mandate to determine private property disputes.

  • Hermanus Phillipus Steven vs Giovanni Gnecchi-Ruscone
    SC Appli. No 4 of 2012, [2013] eKLR

    Equal protection and benefit of the law for victims of historical injustices.

  • Safepak Limited vs Henry Wambega & 11 others
    [2019] eKLR

    ELC has jurisdiction over historical land injustice claims; rights claims must be filed within reasonable time.

  • Chief Land Registrar & 4 Others vs Nathan Tirop Koech & 4 others
    [2018] eKLR

    Courts have jurisdiction over historical injustice claims; limitation does not apply to constitutional rights claims.

  • Zipporah Serony & 5 Others vs Attorney General
    HC Petition No. 500 of 2013 [2020] eKLR

    Historical human rights violations under repealed Constitution can be redressed.

  • Jane Nduta Koigi vs Attorney General
    HC Petition No. 115 of 2018 [2019]

    Similar human rights violation claims handled by courts.

  • Alba Petroleum Ltd vs Total Marketing Kenya Ltd
    [2019] eKLR

    Limitation period for fraud runs from discovery of the fraud.

  • James Kanyita Nderitu vs Attorney General & Another
    [2013] eKLR

    No limitation period for rights enforcement but inordinate delay may defeat a stale claim.

  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999

    Preliminary points should dispose of the matter without ascertaining facts.

  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004

    Preliminary objection must be pure points of law with no facts to be ascertained.

  • Dominic Arony Amolo vs Attorney General
    Nairobi HC Misc. Civil Case No. 1184 of 2003 (O.S) (2010) eKLR

    Limitation law cannot shield State from fundamental rights claims.

  • Otieno Mak'Onyango vs Attorney General & another
    Nairobi HCCC No. 845 of 2003

    Limitation law cannot shield State from fundamental rights claims.

Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 (Environment and Land Court) read with Article 67(2)(e) and Section 15(3)(b) of the National Land Commission Act

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, "Yegon (Suing as the Administrator of the Estate of Kipyegon Arap Kirui - Deceased) v Ekatera Tea Company Limited (Formerly Unilever Tea Kenya Limited) & 2 others", Case Analysis (2023). Constitutional Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18690/eng@2023-07-13

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