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
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over historical land injustice claims vis-à-vis the National Land Commission
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.
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.
Whether Section 7 of the Limitation of Actions Act bars a historical injustice petition
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.
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.
Merit of the Preliminary Objection
The Preliminary Objection and Grounds of Opposition lacked merit and were dismissed with costs.
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
#- 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
#- 1.The Preliminary Objection and the Grounds of Objection raised by the Respondents are dismissed with costs.
- 2.The Petition to be mentioned with a view to giving directions for an expedited hearing and determination.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.