Chepkwony v Attorney General & 2 others

4. That the suit was not founded and/or based on tort of trespass but excision of his land by the said Government ocials who had authorized the 2nd Defendant to illegally build a road and road reserve on a portion of his land. That the Application lacked merit and ought to be dismissed with costs. 5. There was no response from the 1st and 3rd Defendants herein although the 1st Defendant led their submission in support of the Application. On the October 12, 2022, directions were taken that the said Application be conversed by way of written submissions. The 2nd Defendant/Applicant’s submissions 6. In support of their Application, the 2nd Defendant/Applicant framed their issue for determination as to whether the Plainti’s suit should be struck out and proceeded to rely on the provisions of Order 2 Rule 15(1) of the Civil Procedure Rules as the principles guiding the striking out of pleadings. Further submissions were that the suit herein was led by the Plainti /Respondent sometime in February 2017 wherein he had alleged that the cause of action against the 2nd Defendant/Applicant arose sometime in 2005 when the 2nd Defendant/Applicant trespassed on his parcel of land known as Kericho/Koiwa/468 and constructed a road and road reserve on part of the said parcel of land. 7. That the provisions of Section 4(2) of the Limitation of Actions Act were clear and therefore the Plainti /Respondent’s suit was time barred as the same had been led without leave from court. Reliance was placed on the decision in the case of Jones M Musau & another v Kenya Hospital Association & another [2017] eKLR, where the Court of Appeal had noted that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. 8. The 2nd Defendant/Applicant further relied on the decision in Simon Ndwiga Murage v Embu Water And Sanitation Co Ltd [2020] eKLR to submit that an alleged long term consequential damage could not extend the period of limitation ad innitum. That it was trite law that a statute-barred Plaint could not disclose a reasonable cause of action and therefore since the Plainti/Respondent’s suit was time barred and had been led without leave of the Court, the same was an abuse of the court process and should be struck out. The 1st Defendant submissions. 9. In support of the 2nd Defendant/Applicant’s Application that the suit ought to be struck out for being time barred, the 1st Defendant submitted that a reading through the Further Amended Plaint dated the April 14, 2022, the same was clear that Plainti’s claim was for damages for trespass in which he had alleged that in the year 2005, the District Surveyor, Konoin District, the Ministry of Roads and the 2nd Defendant’s workers had allegedly trespassed on his parcel of land wherein they had constructed a road on it. That the Plainti had thus sought for orders of eviction, damages and in the alternative, prompt compensation as provided for by the law. 10. That the suit was rst led on February 16, 2016, which was 11 years after the cause of action had accrued. A Notice to sue the Government, previously issued under Section 13A of the Government Proceedings Act, Cap. 40 Laws of Kenya, was sent to the 2nd Defendant in October 2014, which was 9 years after the fact. 11. That they were in support of the 2nd Defendant’s Application dated March 3, 2022 which had sought to strike out the Plainti's case because it had been a suit founded on the act of trespass. That the cause of action having arisen in 2005, then by dint of Section 4(2) of Limitation of Actions Act, the suit was time barred. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27 2

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12. That upon reading the 2nd Defendant’s Application, and its written submissions dated December 18, 2022 together with the two (2) Authorities led in support of the same, they fully agreed and adopted the same in reply to the Plaintis claim, to which they submitted on account of the said Application, that the Plaintis case was time barred and the same ought to be dismissed as the same was led outside the mandatory statutory timelines and without the leave of the Court. 13. That in addition to the 2nd Defendant’s submissions, that the suit and claims as against the 1st Defendant, the District Surveyor, Konoin District and the Ministry of Roads were equally time barred by dint of Section 3(1) of the Public Authorities Limitation Act. The 1st Defendant relied on the decisions in Bosire Ogero v Royal Media Services [2015] eKLR and in Haron Onyancha v National Police Service Commission & Another [2017] eKLR to buttress their submissions and to seek for the dismissal of the Plainti’s suit. The Plainti ’s Submissions. 14. In response and in opposition to the 2nd Defendants’ Application, the Plainti submitted that the suit’s action was based on compensation of road access which the Government of Kenya through the Ministry of Lands, Housing and Urban Development had compulsorily acquired after excision of his land known as Kericho/Koiwa/468 in the year 2005. Further, the Plainti contended that his claim was not founded on trespass and that he had instituted his suit by way of Plaint on February 16, 2016 within the stipulated period as was provided for under Limitation of Actions Act. That further, Article 40 of the Constitution did not limit compensation of land compulsorily acquired by the Government. 15. The Plainti framed his issues for determination as follows; i. Whether the Plainti's cause of action in the suit is based on compensation or trespass? ii. Whether this suit is time barred? iii. Who will bear the costs of this Application? 16. On the rst issue for determination as to whether the Plainti's cause of action in the suit was based on compensation or trespass, it was the Plainti’s submission that as discerned from the Plaint led on February 16, 2016 and later amended on February 3, 2017 and further amended on April 14, 2022, all with the leave of the court, that the same was founded on relief of compensation of part his land Reference No Kericho/Koiwa/486, which had been unlawfully excised by Government of Kenya through the Ministry of Land, Housing and Urban Development. 17. That the Ministry, through the 1st Defendant had contracted the 2nd Defendant to construct the said road access through his land without compensating him. That it has been after a series of meetings to do so without any success that the Plainti had decided to sue the Defendants. That the 3rd Defendant had been joined to the suit as a Government mandated agency deemed to compensate the injured party when the state acquires land compulsorily for its needs. 18. That the suit was not based on trespass and therefore the provisions of Section 4 of Limitation of Action Act could not be invoked. That the Government unlawfully acquired a portion of his land without compensation and therefore the failure to pay damages arising therein was what the suit was all about. 19. The Plainti relied on the decision in the case of Patrick Musimbe v National Land Commission & 4 Others [2016] eKLR which had expounded on the procedure for compulsory acquisition of private property by the state. His submission was that even if the matter was within the parameters of trespass, which is denied, the suit had been instituted on February 16, 2016 which was within the twelve (12) https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27 3

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years bracket as provided for under Limitation of Actions Act. That the Application was not merited and the same should be dismissed with costs. Determination. 20. I have given due consideration to the rival arguments and the authorities cited, the 2nd Defendant’s Application which is backed by the 1st Defendant is to the eect that the Plainti cannot bring a suit against them because the same is time barred, the cause of action (trespass) having taken place sometime on or about the year 2005 wherein the suit had been instituted on or about February 21, 2017, some 12 years later. 21. The Plainti on the other hand has argued against the Application stating that the suit was not founded on the act of Trespass, but rather that the same was founded on a relief for compensation of his land reference No Kericho/Koiwa/486, which had been unlawfully excised by Government of Kenya through the Ministry of Land, Housing and Urban Development, for the construction of a road access and therefore the provisions of Section 4 of the Limitation of Actions Act were inapplicable. 22. The issue that stands out for determination therefore is whether the Plainti’s suit is time barred. 23. I have considered the fact that the original suit dated the February 16, 2016 was led on an equal date, there had been an amendment to the Plaint on the February 3, 2017 which had further been amended on the April 14, 2022. In the further amended Suit at para 5, the Plainti asserted as follows: ‘’Sometimes during the year 2005 the district surveyor, Konoin district, then ministry of roads ocials and representatives of the second Defendant company illegally and without any reasonable cause and or justication and without the Plainti’s consent, trespassed onto the Plainti’s said land and while therein inspected the same and thereafter surveyed and excised a portion thereof.’’ 24. At paragraph 8 of the Plaint, the Plainti contended as follow; ‘’It is the Plainti’s contention that the actions of the said ocials and the second Defendant amounted to trespass and illegal acquisition of the Plainti’s said land without following due process and without payment of compensation.’’ 25. The Plainti then particularized the damage and loss he had suered, as a result of the Defendants’ trespass, and thereafter sought for orders of eviction, restoration of his land to its origin state, and in the alternative prompt compensation. 26. It is therefore quite clear that the Plainti herein is seeking compensation for the alleged deprivation of his suit land after the 2nd Defendant trespassed thereon and constructed a road and a road reserve. 27. The provisions of Section 4(2) of the Limitation of Actions Act stipulates as follows: ‘’An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:’’ 28. The 1st Defendant, the oce of the Hon Attorney General Respondent, is the representative of the Republic of Kenya in all legal proceedings for the enforcement of law and the assertion or protection of public rights and which oce is established under Article 156 of the Constitution. To this eect thereof when the Hon Attorney General is made a party to the suit, then the Public Authority’s Limitation Act comes into play. 29. It is thus clear from the Plainti’s pleadings in his suit led on the February 16, 2016 that in the year 2005, the District Surveyor, Konoin district, then Ministry of Roads ocials and representatives of the 2nd Defendant Company illegally and without any reasonable cause and/or justication trespassed onto https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27 4

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his land parcel No Kericho/Koiwa/486, and unlawfully excised part of it and proceeded to construct a road and a reserve road without compensating him. 30. The provisions of Section 3(1) of the Public Authorities Limitation Act is clear on the limitation of proceedings against the Government or a local authority and provides that; “ No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.” 31. From the above captioned provisions of the law and the Plainti’s pleadings, that in or around the year 2005, upon acquisition by the Government of a piece of his land in parcel No Kericho/Koiwa/486 to construct a road and a road reserve, time started running in the same year being 2005 and time within which to le suit then lapsed in the year 2006. The Plainti led his initial suit on the February 16, 2016 and was thus late by a period of about 10 years. Section 3 of the Public Authorities Limitation Act provides for a period of 12 months after the cause of action accrued, to le suit against the Government or a local authority. The ling of the current suit 10 years later was clearly in contravention of the provisions of the law and the Plainti’s suit was therefore time barred. 32. A reading of the Plainti’s Plaint shows that he had premised its claim on the tort of trespass and conversion. The Plainti pleaded particulars of alleged loss and damage to support the alleged trespass wherein he had claimed general damages. Simply put, the Plainti’s claim, which was anchored on a tort of trespass committed by the 1st Defendant’s agents, is time barred by dint of section 3(1) of the Public Authorities Limitation Act. 33. It is also important to establish the link between the Public Authorities Limitation Act and the Limitation of Actions Act. In this regard, Section 6 of the Public Authorities Limitation Act provides for Application of the Limitation of Actions Act in matters governed by the Act and provides as follows: “ Notwithstanding the provisions of Section 31 of the Limitation of Actions Act, section 22 of that Act shall not apply in respect of the provisions of this Act; and in section 27 of the Limitation of Actions Act the reference to section 4(2) of that Act shall be read and construed as a reference to section 3(1) of this Act, but subject thereto and notwithstanding section 42 of the Limitation of Actions Act, Part III of that Act shall apply to this Act.’’ 34. Section 4(2) of the Limitation of Actions Act provides that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. In accordance with Section 6 of the Public Authorities Limitation Act cited herein above, reference to Section 4(2) of the Limitation of Actions Act meant reference to Section 3(1) of the Public Authorities Limitation Act which provides that actions founded on tort must be brought within 12 months. The import of this provision is that the Plainti’s claim was statute barred by slightly over 10 years. 35. In Gathoni v Kenya Co-operative Creameries Ltd [1982] 104 at p 107 the court had held as follows: “ … The law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plainti to exercise reasonable diligence and take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the Applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27 5

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36. The Court of Appeal in Mukuru Munge v Florence Shingi Mwawana & 2 others [2016] eKLR held that: ‘’The purpose of the law on limitation of actions is to avoid stale claims, based on the sensible and rationale appreciation that over time memories fade and evidence is lost. The law of limitation therefore seeks to compel claimants not to sleep on their rights and to bring their claims to court promptly. Secondly, the law on limitation of actions ensures that claims are instituted within reasonable time after the cause of action has arisen, so as to secure fair trial when all the evidence is available and to ensure that justice is not delayed. In our minds, those are important constitutional values and principles, which are underpinned by legislation on limitation of actions.’’ 37. The Plainti needed to commence his claim within the time prescribed under Section 4(2) of the Limitation of Actions Act (which meant reference to Section 3(1) of the Public Authorities Limitation Act.) It follows therefore that by the time the Plainti led this suit, his claim was already statute barred. 38. In the case of Bosire Ongero v Royal Media Services [2015] eKLR the court had held that the issue of limitation went to the jurisdiction of the court to entertain claims and therefore if a matter was statute barred the court had no jurisdiction to entertain the same. 39. The Plainti’s case has come to the end of the road in the present instance, the Application dated the March 3, 2022 is herein allowed with the result that the Plainti’s suit is hereby struck out with costs for being time barred. DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 27TH DAY OF APRIL 2023 M C OUNDO ENVIRONMENT & LAND – JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17174/eng@2023-04-27 6

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