Ramtu v Bakari & 6 others (Constitutional Petition 59 of 2019) [2024] KEELC 6917 (KLR)
The bottom line
#Kenya's land court struck out a 2019 property petition over a 1998 dispute because the 21-year delay was unexplained and other remedies were never used.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised pure points of law
The court held that the objection on limitation and constitutional avoidance raised pure points of law capable of determination without ascertaining facts
The court restated the Mukisa Biscuits definition and its progeny, then applied it to the two grounds raised. It found that the grounds of limitation and the doctrine of constitutional avoidance were matters of law determined by examining the pleadings, without any need to ascertain facts or exercise discretion, and thus the objection was properly before the court.
Whether the constitutional petition was barred by the Limitation of Actions Act
The petition was statute barred: the cause of action arose from a 1998 judgment adopted by the court, more than 21 years before the 2019 petition, and the delay was inordinate and unexplained
While courts have consistently held there is no limitation period for enforcement of fundamental rights, the court adopted the line of authority holding that delay must not be inordinate and must be plausibly explained. The petitioner's own pleadings showed knowledge of the dispute and the 1998 judgment, so the claim filed in 2019 was stale and could not be saved by labelling it constitutional.
Whether the petition contravened the doctrine of constitutional avoidance/exhaustion
The second ground of objection was merited; the bulk of the issues were not constitutional and the petitioner should have exhausted other remedies including appeal from the 1998 judgment
The court traced the doctrine through Communications Commission of Kenya, Kiriro wa Ngugi and the 5-judge bench decision on exhaustion, including exceptions. It accepted the petitioner's framing was not genuine constitutional litigation, noting the reliefs could be pursued in a civil suit and that the petitioner should have appealed the 1998 judgment rather than file a delayed petition. Statutory ouster provisions must be construed restrictively, but no exception was demonstrated.
Who bears the costs of the preliminary objection
Costs were reserved in favour of the 5th, 6th and 7th Respondents as the successful parties
Applying Rule 26 of the Mutunga Rules and Section 27(1) of the Civil Procedure Act, costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to order otherwise. No such reasons existed here.
Legal principles established
#- A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
- Although there is no express limitation period for constitutional petitions alleging violation of fundamental rights, the court may refuse relief where the claim is lodged after inordinate and unexplained delay
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed; courts are fora of last resort
- Where a suit is framed in Bill of Rights language merely as a pretext to gain access to the court, it is barred by the doctrine of exhaustion/constitutional avoidance
Court orders
#- 1.That the Notice of Preliminary objection dated 28th June, 2024 be and is hereby found to have merit and is hereby allowed and the same is upheld with costs
- 2.That the Petition dated 20th December, 2019 and filed on 24th December, 2019 be and is hereby struck out
- 3.That the costs shall be in favour of the 5th, 6th and 7th Respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petition for enforcement of fundamental rights and freedoms (Article 40 right to property), before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramtu v Bakari & 6 others (Constitutional Petition 59 of 2019) [2024] KEELC 6917 (KLR)", Case Analysis (2024). Petition dated 20th December, 2019 (filed 24th December, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6917/eng@2024-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.