A constitutional petition does not automatically oust the Limitation of Actions Act where there is inordinate delay

Headnote:      In 1965, N. K. Lagat and Partners, including Noah Chelugui, acquired L.R. No. 10492, measuring 3236 acres, from Jacobus Hendrick Engelbretch. The land was subdivided in 1976, and Chelugui’s portion became Eldoret Municipality Block 15/10. In 1983, Block 15/10 was further subdivided into parcels 237, 238, and 239, with Block 15/239 registered in the name of President Moi. The property was later subdivided and transferred to Rai Plywood (K) Ltd and Kobil Petroleum Ltd. The 2nd respondents, administrators of Chelugui’s estate, claimed that President Moi acquired Block 15/239 through irregular means and sought redress via a constitutional petition in 2014. They alleged violations of property rights under article 40 of the Constitution and requested compensation or restitution. The High Court held that acquisition of Block 15/239 was irregular, unconstitutional; ordered compensation of Kshs.1.06 billion to Chelugui’s estate​. The Court of Appeal upheld the Environment and Land Court’s decision; article 40 applied retrospectively; limitation did not bar constitutional claims. The Supreme Court held that the appeal raised constitutional issues and confirmed its jurisdiction. It determined that article 40 on property rights could apply retrospectively. However, the Court found the 31-year delay in filing the claim inordinate and unjustified, ruling that the Limitation of Actions Act applied. The Court overturned the previous decisions of the Environment and Land Court and the Court of Appeal, concluding that the 2nd respondents’ ownership claims lacked sufficient justification and procedural grounds​.

Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H.E. Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others (Petition 17 (E021) of 2023 & 24 (E027) of 2022 (Consolidated)) [2024] KESC 39 (KLR) (2 August 2024) (Judgment)
Neutral Citation: [2024] KESC 39
Supreme Court of Kenya
MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ
August 2, 2024
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms – right to property – retrospective application of constitutional provisions - whether article 40 of the Constitution on the right to property applied retrospectively – Constitution of Kenya article 40; Constitution of Kenya (repealed) section 70
Civil Practice and Procedure – limitation of actions – constitutional petitions – claims of violation of fundamental rights and freedoms – where there was a delay of 31 years in filing a constitutional petition - whether the Limitation of Actions Act applied to claims of violations of fundamental rights and freedoms - whether the delay between 1983 and 2014 in pursuing a constitutional petition on the violation of the right to property was inordinate - whether a constitutional petition ousted the Limitation of Actions Act without need for a reasonable explanation where there was a delay - Constitution of Kenya articles 24 and 40; Constitution of Kenya (repealed) section 70; Limitation of Actions Act (cap 22) section 7
Civil Practice and Procedure – appeals – second appeals – appeals to the Supreme Court – nature of issues that may be determined on second appeal – issues of law – dispute of fact and evidence - whether a dispute on whether the respondents should have filed a civil suit instead of a constitutional petition, could be determined at the Supreme Court on second appeal.

Brief facts
In 1965, N. K. Lagat and Partners, including Noah Chelugui, purchased L.R. No. 10492, measuring 3236 acres. The land was subdivided in 1976, with each partner receiving 620 acres, while 140 acres went to Huruma Co. Ltd. Chelugui’s portion became Eldoret Municipality Block 15/10. In 1983, Block 15/10 was subdivided into parcels 237, 238, and 239, with Block 15/239 registered in President Moi's name. This parcel was later subdivided, with parts sold to Rai Plywood (K) Ltd and Kobil Petroleum Ltd. The 2nd respondents, administrators of Chelugui’s estate, claimed Moi acquired Block 15/239 irregularly and filed a constitutional petition in 2014 alleging violations of property rights. The Environment and Land Court (ELC) found the acquisition unconstitutional, irregular, and procedurally flawed, ordering compensation of Kshs. 1.06 billion to Chelugui’s estate. The ELC dismissed the appellants' claims of being bona fide purchasers. The Court of Appeal upheld the ELC’s decision, holding that article 40 of the Constitution applied retrospectively. The court ruled that the Limitation of Actions Act did not bar constitutional claims and affirmed the compensation order. The appellants, including Rai Plywood, challenged the findings of the ELC and the Court of Appeal; arguing the delay was unjustified and the claim was improperly filed as a constitutional petition

Issues
  1. Whether article 40 of the Constitution on the right to property applied retrospectively.
  2. Whether the Limitation of Actions Act applied to claims of violations of fundamental rights and freedoms.
  3. Whether the delay between 1983 and 2014 in pursuing a constitutional petition on the violation of the right to property was inordinate.
  4. Whether filing a constitutional petition automatically ousted the Limitation of Actions Act, despite an inordinate delay, without requiring a reasonable explanation.
  5. Whether a dispute on whether the respondents should have filed a civil suit instead of a constitutional petition, could be determined at the Supreme Court on second appeal.
Held
  1. The appeal raised issues involving the interpretation or application of the Constitution. The Supreme Court was seized with jurisdiction to hear and determine the consolidated appeal.
  2. The Constitution, unlike an ordinary statute, may apply retrospectively if the circumstances of a particular case so required. However, it all depended on the language of the specific provision in question. Article 40 of the Constitution (right to property) had ingredients of retrospectivity embedded in it. The provisions of article 40 merely embodied a right that was hitherto protected under section 75 of the repealed Constitution that inhered to individuals.
  3. The issue of whether the respondents ought to have moved the trial court by way of a civil suit as opposed to a constitutional petition was raised too late in the day. Even if the issue had been raised at the trial stage, the Supreme Court doubted that a ruling in favour of the appellants would necessarily have disposed of the proceedings with finality. What would have been in contention was not the jurisdiction of the trial court, but the procedure in which its jurisdiction was being invoked.
  4. Petitions founded on claims of violation of fundamental rights and freedoms were not subject to limitation of actions. The principle was not absolute. It was to be applied by a court of law on a case by case basis taking into account factors such as the nature of the right, the time taken to ventilate the alleged violation, and whether the claimant may be riding on a mischief. Section 7 of the Limitation of Actions Act was applicable to the suit unless ousted by the above principle.
  5. Between 1983 and 2014, neither Noah Chelugui nor his estate pursued any legal redress aimed at vindicating his claim of violation of his right to property. Such delay could not be anything else but inordinate, warranting a credible explanation.
  6. The Court of Appeal did not consider the fact of delay as being relevant in determining whether the limitation period was applicable or not. However, in so doing, the court made no reference to article 24 of the Constitution, which provided for the circumstances under which a right or fundamental freedom may be limited. A right or fundamental freedom, unless it was non- derogable, could be limited only by law, and to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity and freedom.
  7. It was a fundamental omission by the appellate court, not to consider the provisions of article 24 of the Constitution in determining whether section 7 of the Limitation of Actions Act was applicable to the original proceedings before the Environment and Land Court. The the fundamental right or freedom in question was not the right to property per se, under article 40, but the right to institute court proceedings claiming that a right or fundamental freedom had been denied under article 22 of the Constitution.
  8. Given the fact that this right was being exercised, thirty-one (31) years after the cause of action arose, and long after the promulgation of the 2010 Constitution, it was incumbent upon the Court of Appeal to interrogate such inordinate delay and on what basis it would be justifiable. The Limitation of Actions Act sought to limit the time within which a right under article 22 may be exercised. The Act was precisely such law as was envisaged under article 24 of the Constitution.
  9. Had the appellate court addressed itself to the principles weighed against the chronology of events it would have arrived at a different conclusion. The argument that a constitutional petition automatically ousted the provisions of the Limitation of Actions Act, was not legally tenable. There was nothing on record to show that the 2nd respondents provided any explanation for the delay beyond stating that theirs was a constitutional petition and not a claim based on statute.
  10. On a first appeal to the Court of Appeal, unless the appeal was on a point of law, the latter was duty bound where circumstances require, to consider and re-evaluate the evidence on record before arriving at a determination. That was all the more important in disputes relating to claims of title to land The Supreme Court was not to re- calibrate the evidence but simply to establish whether the conclusions arrived at by the Court of Appeal are supported by the evidence on record.
  11. The 2nd respondents did not initially provide a precise description of the suit property. In their 2014 ELC Petition, they claimed Noah Chelugui owned L.R. No. 10492, later subdivided into parcels 237, 238, and 239. Historical records show L.R. No. 10492 was owned by five partners, including Noah Chelugui. Subdivision consent was granted in 1976, assigning 620 acres to each partner and 140 acres to Huruma Co. Ltd. Eldoret Municipality Block 15/10, linked to Noah Chelugui, was subdivided into Blocks 237, 238, and 239. The Certificate of Grant excludes Block 239, casting doubt on the 2ndrespondents’ ownership claims. The Court of Appeal would not have affirmed the conclusions of the trial court regarding the ownership of the suit property given the evidence on record.
  12. There was nothing on record to suggest that former President Moi acquired the suit property either fraudulently, or in a manner other than as indicated on record. What was on record were claims of disenfranchisement of the 2nd respondents from the ownership of the suit property. The claims are based on allegations of loss of a title deed to the suit property and some form of fraudulence perpetrated by one Stanley Metto through payment of Kshs. 70,000/= which was neither purchase price nor consideration. The court was later informed that the said payment was intended to “soften” Mr. Chelugui, whatever that meant in law. It was not for the Supreme Cout to delve into the veracity, effect, or otherwise of such evidence. That was the duty of the trial court, at first instance and the Court of Appeal, during the process of re-evaluation.
  13. Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. The registered proprietor must go beyond the instrument of title and show that the acquisition was legal, formal and free from encumbrance. However, the responsibility to prove legitimacy of title was not only limited to the party whose title was being challenged. It also extended to the party claiming infringement of his property rights, to prove his entitlement warranting the attendant constitutional protection sought. The claimant decried irregular subdivision of Eldoret Municipality/Block 15/10, yet he was a beneficiary of that same subdivision. He only lay claim to one sub-plot, the suit property. IT could not be said that the root of former President Moi’s title to the suit property and by implication that of the 2nd appellant had been legally shaken based on the evidence tendered on behalf of the 2nd respondent.
  14. There was no basis for the appellate court, to fault the validity of the 1st appellant’s title to the suit property.
Appeal allowed.
Orders
  1. The Judgment of the Court of Appeal dated July 22, 2022 was overturned.
  2. Each Party was to bear its own Costs; and
  3. The sum of Kshs. 6,000/= deposited as security for costs in the consolidated appeal be refunded to the appellants.

Persons that had applied for a job listing and had been shortlisted for an interview have a legitimate expectation to be interviewed.

Headnote:      The petitioners, having been shortlisted for external member positions of the Garissa County Assembly Service Board, were denied interviews due to a procedural delay. The respondents re-advertised the vacancies without explanation, violating the petitioners' legitimate expectations and right to fair administrative action. The court ruled in favor of the petitioners, declaring that they should automatically qualify for interviews in any future recruitment, while allowing the respondents to re-advertise the positions to accommodate marginalized groups.

Abdi & 2 others v Speaker, County Assembly of Garissa & another (Constitutional Petition E013 of 2023) [2024] KEHC 4577 (KLR) (3 May 2024) (Judgment)

High Court at Garissa

JN Onyiego, J

Reported by John Ribia

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Employment Law – legitimate expectation – legitimate expectation of applicants that had been shortlisted for an interview – where the position was re-advertised without interviews being conducted – where the reason was to accommodate minorities and marginalized persons - whether persons that had applied for a job listing and had been shortlisted for an interview had a legitimate expectation to be interviewed – whether the County Government of Garissa was at liberty to re-advertise for a position that it had already shortlisted candidates so as to accommodate members of the minority and marginalized communities - whether persons who had been shortlisted were to re-apply - Constitution of Kenya articles 10 and 259

Constitutional Law – fundamental rights and freedoms – right to fair administrative action - applicants that had been shortlisted for an interview - where the position was re-advertised without interviews being conducted - whether requiring persons that had applied for a job listing and had been shortlisted for an interview to apply again after the position was re-advertised without conducting an interview or granting reasons for rea-advertising was a breach of the right to fair administrative action of the shortlisted candidates - Constitution of Kenya articles 10, 47, 56 and 259

Brief facts

The petitioners applied for the position of external members of the Garissa County Assembly Service Board, having been shortlisted and invited for interviews on June 14–15, 2023. However, the interviews were postponed due to a court-issued conservatory order. On September 13, 2023, the respondents re-advertised the vacancies without providing reasons, prompting the petitioners to file a constitutional petition. They alleged violations of their legitimate expectations and rights to fair administrative action.

Issues

  1. Whether persons that had applied for a job listing and had been shortlisted for an interview had a legitimate expectation to be interviewed.
  2. Whether the County Government of Garissa was at liberty to re-advertise for a position that it had already shortlisted candidates so as to accommodate members of the minority and marginalized communities.
    1. Whether persons who had been shortlisted were to re-apply.
  3. Whether requiring persons that had applied for a job listing and had been shortlisted for an interview to apply again after the position was re-advertised without conducting an interview or granting reasons for rea-advertising was a breach of the right to fair administrative action of the shortlisted candidates.

Held

  1. Before any constitutional relief can issue, a party seeking such relief must prove that he or she has locus standi. For a Constitutional remedy to apply one has to prove with precision the nature of the violation and the provision violated. A party seeking a constitutional redress ought to express himself or herself with a reasonable degree of precision the nature and extent of constitutional rights violated or threatened or likely to be infringed.
  2. Not every infringement amounted to a constitutional violation to attract a constitutional relief. There must be a real infringement, denial of rights or threat to violation that called for interpretation of the Constitution vis-à-vis the rights infringed or threatened. It was not every disagreement that must find its way to the constitutional court.
  3. Article 259 of the Constitution provided that the Constitution must be interpreted in a manner that promoted inter alia; its purposes, values and principles; the rule of law; good governance and be given purposive interpretation as read as a whole. In the instant case the petitioners had relied on the breach of their legitimate expectation and fair administrative action.
  4. The petitions had legitimate expectation that the respondents were duty bound to conduct the interviews for which the petitioners were short listed. The protection of legitimate expectation was at the root of the rule of the law, which required predictability and certainty in government’s dealings with the public. That was what article 10 of the constitution envisaged on the aspect of accountability, transparency and good governance.
  5. A party that sought to rely on the doctrine of legitimate expectation had to show that it had locus standi to make a claim on the basis of legitimate expectation. There was no dispute that the petitioners were among the 36 persons shortlisted for the external person’s positions. They were even invited to appear on a specific date for interview which never came to fruition. The right to employment was a right for every Kenyan subject to relevant conditions attached. Having met the requisite qualifications, invited for interview, they had legitimate expectation to be interviewed and if successful be employed. The expectation was legitimate hence constitutional.
  6. The petitioners were entitled to reasons for re-advertising the same positions. Article 47 of the Constitution underscored fair administrative action which included giving reasons for any decision or action taken by a public body to whom an explanation for the action taken was necessary. No such explanation was rendered. To that extent the applicants’ rights and those of the other candidates were violated for lack of fair administrative action hence breach of legitimate expectation.
  7. The actions of the respondents were not justifiable.  The argument that the timelines had lapsed hence making continuing with the process a breach of the law was not concinvicing as the process legally stopped and time stopped running legally and nobody would be held liable for flouting the law. The explanation that they had not taken into consideration the minority and marginalized people living within Garissa County, although noble, could not explain why they had overlooked the same in the first place and an explanation rendered.
  8. The 3rd respondent as an employment agency, must take into account the minority and the marginalized. Having woken up to the reality that there was an omission in the recruitment process, they had a duty to correct the omission. However, the correction should not be at the detriment or expense of the already short- listed persons. The respondents could go ahead and re-advertise if they found it desirable with a caveat that those who had already applied and been shortlisted needed not apply and that they shall automatically be interviewed.

Petition partly allowed.

Orders: -

  1. A declaration was made that the petitioners had a legitimate expectation to be interviewed after having been shortlisted for the position of external members of Garissa County Assembly Service Board.
  2. Declaration made that the respondents shall be at liberty to re-advertise the said positions so as to accommodate members of the minority and marginalized living within Garissa county.
  3. Declaration made that upon the respondents re-advertising the positions of external members of the Garissa County Assembly Service Board, the petitioners and their counterparts (36 of them) who had applied and been shortlisted for the same positions needed not apply and that they shall automatically qualify to appear for interview when scheduled.
  4. Each party was to bear own costs.

New issues cannot be introduced at an appeal before the Supreme Court if they were not raised at the High Court and Court of Appeal.

Headnote:      The applicants sought to establish an equitable interest in property based on cohabitation with the respondent. The High Court ruled the relationship did not constitute a valid marriage due to the 1st applicant’s existing marriage. The Court of Appeal denied certification for a Supreme Court appeal, concluding the case did not raise issues of general public importance. The Supreme Court upheld this decision, finding the issues were fact-specific and did not transcend the parties involved. Each party bore their own costs.

TMG & another v AP (Application E012 of 2024) [2024] KESC 48 (KLR) (30 August 2024) (Ruling)

Supreme Court of Kenya

MK Koome, CJ & P; PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, W Ouko, SCJJ

Reported by John Ribia

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Family Law – marriage – capacity to marry – doctrine of presumption of marriage – where one entered into a marriage that was voidable due to lack of consummation – whether such a party could enter into another marriage or had capacity to be presumed to be married - whether the doctrine of presumption of marriage applied when one party had an existing, unconsummated marriage - whether the failure to conclude divorce proceedings impacted the legal capacity to one to be presumed as married to another person - Marriage Act (cap 150) sections 3(1), and 9(a)

Family Law – matrimonial property – definition – capacity to have equitable interest in matrimonial property – where one was presumed to be married but cohabited with another - whether cohabitation could create equitable interests in property, even where a formal marriage did not exist - Marriage Act (cap 150) sections 3(1), and 9(a); Matrimonial Property Act (cap 152) section 2

Civil Practice and Procedure – appeals –second appeal – nature of issues that can be raised in an appeal - whether new issues can be introduced at the appellate stage if they were not raised in lower courts.

Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals that raised matters of general public importance - whether disputes involving cohabitation and property rights raised issues of general public importance warranting the Supreme Court consideration - Constitution of Kenya article 163 (4)(b), and (5); Supreme Court Rules (2020) (Cap 9B Sub Leg) rule 33

Brief facts

The 1st applicant and RAP (P)celebrating a monogamous marriage before the Registrar of Marriages; on March 19, 2003. P left for the United States on the very same day and never returned; the 1st applicant commenced divorce proceedings seeking nullification of the said marriage on the ground that the marriage was not consummated, which proceedings were still pending before the Kilifi Chief Magistrate’s Court. The 1st applicant was blessed with a minor (2nd applicant) on November 15, 2005 from a different relationship; thereafter, the 1st applicant and the respondent began an intimate relationship in 2008. They lived together in a house in Mtwapa, which was jointly registered in their names. After selling that property and sharing the proceeds, the respondent purchased another property, referred to as the suit property, in Shanzu in 2011 and constructed a residential house on it. The applicants, including QFG (the 2nd applicant, a minor), moved into the suit property in 2014.

In 2016, the relationship ended, and the respondent served the 1st Applicant with a notice to vacate the suit property. The 1st applicant filed a suit in the High Court claiming an equitable interest in the property, arguing that they lived as husband and wife and that the respondent had assumed parental responsibility over the 2nd applicant. The respondent denied the claims, stating that he purchased the suit property for resale and allowed the applicants to stay temporarily while the 1st applicant arranged for her own residence. He also argued that the 1st applicant's prior marriage to another man was still legally valid, thereby precluding any presumption of marriage.

The High Court found that no valid marriage existed between the 1st applicant and the respondent due to the 1st applicant's subsisting marriage. Consequently, the court ruled that the suit property was not matrimonial property and dismissed the applicants’ claims. The Court of Appeal upheld this decision and refused to certify the case for appeal to the Supreme Court, stating it did not raise issues of general public importance. The applicants then sought a review of this decision in the Supreme Court, arguing that their case raised significant issues regarding evolving societal norms and property rights in cohabitation arrangements.

Issues

  1. Whether the doctrine of presumption of marriage applied when one party had an existing, unconsummated marriage.
  2. Whether cohabitation could create equitable interests in property, even where a formal marriage did not exist.
  3. Whether the failure to conclude divorce proceedings impacted the legal capacity to one to be presumed as married to another person.
  4. Whether new issues can be introduced at the appellate stage if they were not raised in lower courts.
  5. Whether disputes involving cohabitation and property rights raised issues of general public importance warranting the Supreme Court consideration.

Held

  1. A matter of general public importance which would warrant the exercise of this Court’s appellate jurisdiction under article 163(4)(b) of the Constitution should transcend the dispute between the parties, and have a significant bearing upon public interest. The onus lay with the applicants to demonstrate that the matter in question carried specific elements of real public interest and concern.
  2. The applicants did not concisely set out the issues they deemed were of general public importance in their Motion. Rather, they set out the issues in their written submissions. It was a requirement and a necessity for an intended appellant(s) to concisely set out the issues deemed to be of general importance.
  3. The delineated issues formed the basis upon which both the Court of Appeal and the Supreme Court determined whether indeed an intended appeal raised issues of general public importance which warrant the Supreme Court’s consideration. For proper order and notice to the other parties, an intended appellant, like the applicants, should concisely delineate the issue(s) of general public importance he/she deems arises from an impugned decision of the Court of Appeal not only in a Motion seeking certification but also in the instant Motion seeking review of the decision of the Court of Appeal declining such certification.
  4. The applicants had not demonstrated that there was any lacuna or inconsistency with regard to what constituted a valid marriage. The Marriage Act wasclear on this issue. In particular Section 3 (1) of the Act defined a marriage as a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act. Section 9(a) thereof provided that a married person shall not, while in a monogamous marriage, contract another marriage.
  5. Section 11(1)(c) of the Marriage Act provided that a union was not a marriage if at the time of the making of the union either party was incompetent to marry by reason of a subsisting marriage.  Since no marriage could be presumed between the 1st applicant and the respondent, it followed that the suit property was not matrimonial property.
  6. The Matrimonial Property Act was quite explicit on what constitutes a matrimonial home. Section 2 thereof defined matrimonial home as any property that was owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and included any other attached property. The said interpretive section also defined a spouse as a husband or a wife.
  7. Issues relating to violation of the applicants’ constitutional rights were never subject of the litigation before the said courts. Therefore, such issues could not be raised for the first time at the point of seeking certification.
  8. Allegations of the violation of articles 28, 40 and 53(3) of the Constitution were not even raised by the applicants in their Motion seeking certification before the Court of Appeal. An intended appellant could not introduce new issues in a Motion seeking review of the Court of Appeal’s decision declining certification, when such issues had not been raised in the Motion for certification before the Court of Appeal.
  9. The Motion had fallen short of demonstrating to our satisfaction beyond a mere restatement that the intended appeal raised issues of general public importance. The intended appeal sought to secure an interpretation of the law in the context of the peculiar facts of this case, which was beyond this Court’s appellate jurisdiction under article 163(4)(b) of the Constitution

Application dismissed, each party was to bear their own costs.