[2025] KELAT 120 (KLR)

Kariku & another (Suing as Administrators of the Estate of Geoffrey Kariku Kimani) v Kenya National Highways Authority (KENHA) & 3 others (Tribunal Case E058 of 2024) [2025] KELAT 120 (KLR) (13 February 2025) (Ruling)

Neutral citation: [2025] KELAT 120 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E058 of 2024

NM Orina, Chair & G Supeyo, Member

February 13, 2025

Between

James Thuo Kariku

1st Petitioner

Geoffrey Kariku Thuo

2nd Petitioner

Suing as Administrators of the Estate of Geoffrey Kariku Kimani

and

Kenya National Highways Authority (KENHA)

1st Respondent

Kenya Urban Roads Authority (KURA)

2nd Respondent

The National Land Commission (NLC)

3rd Respondent

The Chief Land Registrar

4th Respondent

Ruling

Brief Facts and Background 1. The Petitioners approached this Tribunal vide the Petition dated 14th November, 2024. Filed alongside the Petition were; the verifying affidavits of James Thuo Kariku and Geoffrey Kariku Thuo both sworn on 14th November, 2024, witness statements of James Thuo Kariku and Geoffrey Kariku Thuo both dated 14th November, 2024 and the Petitioners’ list and bundle of documents dated 14th December, 2024.

2. The Petitioners contend that they are the administrators of the Estate of Geoffrey Kariku Kimani (deceased) and that they hold letters of administration issued by the High Court of Kenya at Nairobi on 17th August, 2016 in Succession Cause No. 428 of 2016.

3. It is the Petitioners’ main contention that the 1st and 2nd Respondents have from 1980 to date illegally occupied part of LR No. 254/1 (IR No. 23846), the suit property herein, which allegedly forms part of the estate of Geoffrey Kariku Kimani (deceased) and have over the years used that a part of the suit property as a public road known as Kenyatta Road – Exit 14 for public utility infrastructure without compensating the beneficial owner of the land.

4. Upon service of the Petition and its accompanying documents, the 2nd, 4th and 5th Respondents filed Grounds of Opposition dated 25th November, 2024 asserting that the Petition does not disclose any cause of action against the said Respondents.

5. On its part, the 1st Respondent has filed a Notice of Preliminary Objection dated 27th November, 2024 challenging the jurisdiction of this Tribunal to hear and determine this matter by virtue of Section 133C of The Land Act, 2012 and Section 4(1) of the Limitations of Actions Act.

6. This Ruling is in respect of that preliminary objection.

Analysis and Determination 7. Two main issues are up for determination as can be gleaned from the pleadings filed. These are:i.Whether this Tribunal has jurisdiction to determine this matter; andii.Whether the Petition herein is time barred, in any case.

8. On 2nd December, 2024, parties were directed to file and serve their Submissions in respect of the 1st Respondents’ Notice of Preliminary Objection dated 27th November, 2024 on varying dates.

9. Based on the above directions, the Tribunal is in receipt of the 1st Respondent’s Submissions dated 11th December, 2024 and the Petitioners’ Submissions in reply dated 8th January, 2025. The 3rd Respondent did not participate in these proceedings.

10. On the question of jurisdiction, it is the 1st Respondent’s position that the Petitioners have prematurely invoked this Tribunal’s jurisdiction. The 1st Respondent contends that according to Section 133C of the Land Act, 2012, this Tribunal’s jurisdiction is limited to hearing and determining appeals from the decisions of the National Land Commission in matters relating to compulsory acquisition. According to the 1st Respondent, the Petitioners should have first taken their grievance to the National Land Commission before approaching this Tribunal.

11. The Petitioners have on their part, through their Submissions dated 8th January, 2025 urged the tribunal to find that it has jurisdiction to determine this matter. The Petitioners rely on this Tribunal’s determination in Manjanje & 3 others (Suing in their own capacity and on behalf of Thogoto Ukai Self Help) v National Land Commission (Land Acquisition Petition E025 of 2024) [2024] KELAT 1209 (KLR) (29 August 2024) (Judgment) where it was stated in part as follows:17. In the case of Tom Mwachiti Mwero (Suing as a representative of the Estate of Fredrick Johnson Mwachiti (Deceased) vs. Kenya Railways Corporation and National land Commission (TRLAP/E001/2023) this tribunal held as follows in regard to its jurisdiction especially under Section 133C (8):The language used in the Land Act is a “matter relating to” compulsory acquisition of land in relation to the Tribunal’s jurisdiction under Sections 133C (6) and (8). The Oxford Learner’s Dictionary (online edition) defines “related” as “connected with something.” This Tribunal’s jurisdiction, therefore, extends to any matter that is connected to the process of compulsory acquisition.18. The tribunal’s jurisdiction is not restricted to appeals arising out of the decision of the Respondent but the same extends to complaints arising out of any matter connected with compulsory acquisition of land. The Respondent’s objection to the tribunal’s jurisdictions is, therefore, without merit and the same is dismissed.

12. This tribunal’s jurisdiction stems from Section 133C of the Land Act, Cap 280 of the Laws of Kenya. In addition to jurisdiction under Section 133C (1) to hear and determine appeals arising from the decision of the National Land Commission in matters relating to the process of compulsory acquisition of land, this Tribunal has jurisdiction under Section 133C (8) to hear and determine complaints arising under Articles 23(2) and 47(3) of the Constitution of Kenya 2010. This position has been underscored in Manjanje & 3 others (Suing in their own capacity and on behalf of Thogoto Ukai Self Help) v National Land Commission (Land Acquisition Petition E025 of 2024) [2024] KELAT 1209 (KLR) (29 August 2024) (Judgment). We do not see any reason to depart from that decision and hence we find that the 1st Respondent’s objection to the Tribunal’s jurisdiction on that account lacks merit and the same is dismissed.

13. On the question of whether this Petition is time barred, the 1st Respondent has asked this Tribunal to note that from the Petitioners’ own admission, the construction of Kenyatta Road – Exit 14, was completed in 1980, 44 years before the Petitioners instituted this suit. The 1st Respondent further pleads that there has been no explanation from the Petitioners to warrant the inordinate delay in filing of this Petition.

14. It is the 1st Respondent’s position therefore that this Petition is time barred by dint of Section 4(1) of the Limitations of Action Act. The 1st Respondent relies on the case of Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR) where the Court of Appeal held as follows:63. In dealing with laches, Halsbury’s Laws of England, 4th ed. Vol. 16(2) at 910 has this to say;“A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the statutes of limitation equity aids the vigilant, not the indolent’ or ‘delay defeats equities’. A Court of equity refuses its aid to stale demands, where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (‘laches’).64. Lord Selbourne L.C. delivering the opinion of the Privy Council in The Lindsay Petroleum Co v Hurd (1874) L.R. 5 P.C. 221 said at page 240:“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

15. The Petitioners, on their part, submit that the Constitution does not provide for limitation of actions for enforcement of fundamental rights and freedoms. It is their further submission that given the superiority of the Constitution of Kenya, statutes of limitation do not apply to actions for enforcement of the Bill of Rights. In this regard, the Petitioners have cited the case of Dominic Arony Amolo v. Hon Attorney General [2003] eKLR in support.

16. The gravamen of the Petition is in the alleged acquisition of part of the suit property without compensation. This Petition is brought under Section 133C (8) of the Land Act which is in regard to Article 23(2) and 47(1) of the Constitution.

17. We are persuaded by the Petitioners that a complaint based on alleged violation of fundamental rights is not subject to the provisions of Cap 22 of the Laws of Kenya. In the case of Kiluwa Limited & Another v Commission of Lands & 3 Others [2015] eKLR, the court expressed itself as follows:There is no statutory period prescribed for commencement of the petitions either under Article 22 or 258 of the constitution. The grant of these reliefs or remedies is consequently not subject to any statute or period of limitation either under the Limitation of Actions Act (Cap 22 laws of Kenya) or the Law Reform Act… I therefore reject argument by Counsel for the 3rd and 4th respondents subjecting the reliefs in judicial review granted in a constitutional petition to any period of limitation.

18. However, we are not persuaded that the Constitution affords a Complainant a carte blanche to delay for an inordinately long period, and without sufficient reason, the filing of a claim for violation of fundamental rights. It is important that a complainant seizes the earliest opportunity to file such a claim while the evidence is fresh and while the Respondent is also able to defend themselves.

19. We are aware that nature of violation of fundamental rights is, however, not ideal. The victim of such a violation may not have access to the tools to enforce his or her rights at the time the violation happens. That is the situation that obtains especially when the claim is against a repressive regime that is still in power. Indeed, as argued by the Petitioners, the essence of transitional justice is to afford such a victim leeway to enforce such rights after the repressive regime has exited from power.

20. Kenya has certainly undergone transitions since the alleged violations happened. The 2010 Constitutional dispensation is one such major epoch in our history. The constitutional protections provided by our Constitution have afforded victims of many untold egregious violations an opportunity to seek redress before our courts. In some cases, such victims have taken time to come forward and to seek justice due to severe trauma or the need to take time to process their experiences and be at ease with the justice system.

21. The instant case is not such a case, though. The Petitioners allege that their parcel of land was illegally acquired in 1980. Forty-four years before the petition was filed. The Petitioners have not attempted to explain the inordinate delay in the filing of the Petition. The Petitioners have mentioned that they have attempted to pursue the claim before the 3rd Respondent unsuccessfully. Evidence on record says otherwise. The first time the Petitioners made a claim for compensation was in their letter to the 1st Respondent dated 7th February, 2022, forty-two (42) years after the alleged acquisition happened. Even though the term “inordinate” is not defined in law, an unusually long period before a claim is filed is striking and requires a cogent explanation from the Claimant. We are guided by the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR) where it was stated as follows:We agree with the general principle that no law or past case has set such a time limit. To that extent we agree with the holding of Gacheche, J. that:“--- where it is alleged petitioner has taken his sweet time in preferring a claim, the burden of convincing the court that he had a good reason for moving late, lies with him; and he must explain the delay and time taken with a view to convincing the court that he could not have moved earlier.”

22. Lastly, although the Petitioners have argued that no prejudice can be caused by this delay, we disagree. An inordinate delay certainly disadvantages the Respondents’ ability to defend themselves. As held in Musa Mbwagwa Mwanasi & 9 others v Chief of the Kenya Defence Forces & another [2021] eKLR:I agree indeed in constitutional related matters, the general rule is that there is no limitation of time set for filing constitutional petitions. However that notwithstanding , for purposes of fair trial as provided under Article 50 of the Constitution, it is expected that one should not advertently delay commencement of a suit such that the other party is compromised in putting forth a plausible defence. Further in my view any delay must be explained fully for purposes of establishing whether it can be excused by the Court and it is the burden of the delaying party, in this case, the Petitioners to put forth a plausible explanation as to why the delay should be considered inadvertent.

23. For the foregoing reasons, this Tribunal finds that, even if the Petitioners’ claim may be found to be valid, it violates the doctrine of laches and the same cannot stand. It is hereby dismissed with no order as to costs.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF FEBRUARY 2025DR. NABIL M. ORINA - CHAIRPERSONGEORGE SUPEYO - MEMBERBefore: -Ms. Nerima for the PetitionersMs. Yvonne h/b for Ms. Macharia for the 1st RespondentMs. Nyawira for the 2nd, 4th and 5th RespondentsMs. Kisengese for the 3rd RespondentBuluma – Court Assistant