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ELCDismissedNot stated in the ruling (plaint dated 17th July 2023, filed 11th August 2023, amended 18th March 2024)· [2025] KEELC 3178 (KLR)

Okwera v County Government of Busia & 5 others (Environment & Land Case E004 of 2023) [2025] KEELC 3178 (KLR)

Environment and Land Court
8 April 2025
3,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Busia ruled that a landowner's trespass claim against Busia County over a road built on her land is not time barred.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel No South Teso/Chakol/1158 since 1st July 1996, sued the County Government of Busia and others claiming that in or about August 2020 the Defendants forcefully invaded, trespassed upon and encroached into the suit property, demolished her perimeter fence and dwelling house, and constructed an expanded tarmac road occupying part of the land. She sought a declaration that these acts violated her right to property under Article 40(1) of the Constitution, compensation, general and special damages of Kshs 1,300,000 for repairs, costs and interest. The Defendants filed a defence denying illegality and raised a preliminary objection dated 5th January 2023 on two grounds: that the suit is time barred under Section 3(1) of the Public Authorities Limitations Act, and that the Court lacks jurisdiction. The objection was canvassed by written submissions. Applying Mukisa Biscuit and Lilian S, Olao J dismissed both limbs. On limitation, although the suit was filed well beyond the statutory twelve months, the plaintiff had pleaded a violation of Article 40, and there is no limitation period for enforcing fundamental rights absent inordinate unexplained delay. More decisively, the claim is anchored on trespass, a continuing tort which gives rise to a fresh cause of action daily for as long as the road remains on the land uncompensated. On jurisdiction, the dispute and remedies fall squarely within Section 13(2) and 13(5) of the Environment and Land Court Act, and the plaintiff's right to recover land had another nine years to run under Section 7 of the Limitation of Actions Act. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the suit is time barred under Section 3(1) of the Public Authorities Limitations Act

Holding

The objection fails: the plaintiff invoked a violation of her constitutional right to property and, more fundamentally, her claim is one of continuing trespass to land which cannot be defeated by limitation.

Reasoning

The cause of action arose in August 2020 and suit was filed on 11th August 2023, beyond the 12-month period. However, the plaintiff pleaded violation of Article 40, and courts have held there is no limitation for enforcement of fundamental rights where delay is not shown to be inordinate or prejudicial. More importantly, the claim is anchored on trespass, a continuing tort: the tarmac road remains on the land and no compensation has been paid, so a fresh cause of action arises daily. The plea of limitation cannot shield the Defendants.

p. 6
02

Whether the Court lacks jurisdiction

Holding

The Court has jurisdiction; the remedies sought fall squarely within Section 13(2) of the Environment and Land Court Act.

Reasoning

The dispute relates to land, trespass and encroachment, within Section 13(2)(a), (d) and (e) of the Environment and Land Court Act, and the remedies sought (declaration, compensation, damages) are within Section 13(5) and Article 23(3). The jurisdictional objection was anchored on the claim that the suit was statute barred, which the Court had already rejected; the plaintiff's interest in the land had another nine years before extinguishment under Section 7 of the Limitation of Actions Act.

03

Whether a constitutional violation may be pursued by plaint rather than petition

Holding

Yes; under Article 159(2)(d) the plaintiff may pursue her claim by plaint where she has pleaded the constitutional violation.

Reasoning

Although the plaintiff approached the Court by plaint rather than petition, she pleaded violation of Article 40 in paragraph 23 of the plaint. Relying on Article 159(2)(d) (substantive justice without undue regard to procedural technicalities), the Court held she is entitled to pursue the claim in that manner and that the jurisprudence on limitation in constitutional petitions applies equally.

p. 5

Legal principles established

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  • Trespass to land is a continuing tort giving rise to a fresh cause of action day to day for as long as the trespass continues, and is not defeated by limitation.
  • There is no limitation period for enforcement of fundamental rights and freedoms, though inordinate delay must be explained.
  • A question of jurisdiction must be raised and decided at the earliest opportunity.

Court orders

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  1. 1.The Preliminary Objection is devoid of any merit and is hereby dismissed
  2. 2.The Defendants shall bear the Plaintiff's costs of the objection

Authorities

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Legislation

  • Constitution of KenyaArticle 40(1)
  • Constitution of KenyaArticle 23(3)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 162(2)(b)
  • Public Authorities Limitations Act (Cap 39)Section 3(1)
  • Environment and Land Court ActSection 13(2), 13(5)
  • Limitation of Actions ActSection 7

Cases cited (10)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    1969 E.A 696
  • Owners Of The Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    C.A. Civil Appeal No 50 of 1989 eKLR
  • Wachira Weheire v A.G.
    2010 EKLR
  • Absa Bank Kenya Plc v Kenya Deposit Insurance Corporation
    NBI H.C.C. No E411 of 2023
  • Kenya Bus Services Ltd & Another v Minister for Transport & Others
    2012 KEHC 2402 KLR
  • Ngobi v K.P.A.
    2017 KEHC 627 KLR
  • James Kanyitta v A.G.
    Petition No 180 of 2011
  • Isaack Ben Mulwa v Jonathan Mutunga Mweke
    2016 eKLR
  • Nguruman Ltd v Shompole Group Ranch & 3 Others
    C.A. Civil Appeal No 73 of 2004 [2007 eKLR]
  • Bosire Ongero v Royal Media Services
    2015 eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court 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, "Okwera v County Government of Busia & 5 others (Environment & Land Case E004 of 2023) [2025] KEELC 3178 (KLR)", Case Analysis (2025). Not stated in the ruling (plaint dated 17th July 2023, filed 11th August 2023, amended 18th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3178/eng@2025-04-08

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