Okwera v County Government of Busia & 5 others (Environment & Land Case E004 of 2023) [2025] KEELC 3178 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is time barred under Section 3(1) of the Public Authorities Limitations Act
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.
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.
Whether the Court lacks jurisdiction
The Court has jurisdiction; the remedies sought fall squarely within Section 13(2) of the Environment and Land Court Act.
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.
Whether a constitutional violation may be pursued by plaint rather than petition
Yes; under Article 159(2)(d) the plaintiff may pursue her claim by plaint where she has pleaded the constitutional violation.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection is devoid of any merit and is hereby dismissed
- 2.The Defendants shall bear the Plaintiff's costs of the objection
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.