Safepak Ltd v Wambega & 11 others (Civil Appeal 8 of 2019) [2019] KECA 510 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that landowners can sue over historical land injustices in the Environment and Land Court, and old land claims aren't automatically time-barred.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge was right in holding that the ELC has jurisdiction to entertain historical land injustice claims
- 2.Whether the petitioners' claim is statute barred
- 3.Whether the court properly exercised its discretion in granting the petitioners the option to choose the action to pursue
Key legal issues
#Jurisdiction of the ELC over historical land injustice claims vis-à-vis the National Land Commission
The ELC has jurisdiction to entertain historical land injustice claims; the NLC's mandate under Article 67(2)(e) is not exclusive, and Section 15(3)(b) of the National Land Commission Act permits the ELC to deal with such claims.
The Court endorsed Chief Land Registrar v. Koech, reasoning that if the NLC had initial and exclusive mandate, all present land injustice cases would go only to the NLC, rendering the Environment and Land Courts redundant. Section 15(3)(b) expressly permits the ELC to handle historical injustice claims addressable through the ordinary court system. The petitioners had also referred the dispute to the NLC, whose outcome was a matter of evidence for the trial court.
Limitation of the historical injustice claim
The claim was not statute barred; Section 7 of the Limitation of Actions Act does not apply to constitutional petitions, and Article 67 imposes no time limit.
Relying on Chief Land Registrar v. Koech and Wellington Nzioka Kioko v. AG, the Court held there is no limitation period for constitutional petitions, subject to Article 24. Delay, where relevant, is assessed case-by-case on length of delay, explanation, availability of witnesses and justice of the claim. The Judge's finding that the claim was not time-barred and not defeated by laches disclosed no basis for appellate interference.
Discretion to order election between parallel suits rather than strike out the petition
The ELC properly exercised its discretion in directing the petitioners to elect which of the parallel actions to pursue instead of striking out the petition.
Striking out is a draconian, discretionary remedy exercisable only in the clearest of cases, per D.T. Dobie v. Muchina. The consequence of a finding of abuse of process is a matter for the trial judge's discretion; it does not follow that striking out is the only remedy. The petitioners had elected the petition and withdrawn the consolidated suits with costs, and the appellant showed no prejudice.
Legal principles established
#- The ELC has jurisdiction to hear and determine claims founded on historical land injustice whether or not the National Land Commission is seised of the matter; nothing in the Constitution or the National Land Commission Act ousts that jurisdiction.
- There is no time limit for filing a constitutional petition and the limitation periods in the Limitation of Actions Act do not apply to enforcement of Bill of Rights guarantees, though inordinate unexplained delay may be a consideration.
- Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be followed provided the remedy thereunder is effectual.
- Striking out a suit is a permissive, discretionary remedy to be exercised sparingly and only in the clearest of cases; a court finding abuse of process is not bound to strike out and may direct election between parallel suits.
Court orders
#- 1.The appeal and cross-appeal are dismissed
- 2.The petition before the ELC be placed for mention before that court within 14 days from the date of delivery of this judgment with a view to giving directions for an expedited hearing and determination of the petition
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Constitutional Petition No. 2 of 2018 (ruling of 13th December 2018)
- Jurisdiction invoked
- Article 164 of the Constitution (first appellate jurisdiction); appeal against exercise of ELC jurisdiction under Article 162(2)(b) and the Environment and Land Court Act
Relief refused
#Appeal against the ELC ruling declining to strike out the petition
The ELC properly exercised its discretion in directing the petitioners to elect which action to pursue; no prejudice demonstrated
Cross-appeal contending the petition was statute barred under Section 7 of the Limitation of Actions Act
Section 7 does not apply to constitutional petitions; no basis to interfere with the trial court's finding
Costs
We make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that, in our judgment, the ELC was right in holding that it has jurisdiction over the matter.
Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act do not apply to violation of rights and freedoms guaranteed in the Constitution.
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be followed provided that the remedy thereunder is effectual.
a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal
We accordingly direct that the petition before the ELC be placed for mention before that court within 14 days from the date of delivery of this Judgment with a view to giving directions for an expedited hearing and determination of the petition.
We make no orders as to costs.
Issues in the judgment
#The judgment does not state the appeal number of the present appeal, and the case title is inferred from the record; the coram also omits the presiding judge designation, listing the judges only by name and rank.
The trial judge's quoted ruling contains typographical errors ('ofiend', 'dfierent', 'efiectual') reproduced verbatim in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission v Wandavuu Limited & another; Wandavuu Limited (Cross Petitioner); County Government of Machakos & 4 others (Respondent); National Land Commission (Interested Party) (Environment and Land Case Civil Suit E089 of 2024) [2025] KEELC 6924 (KLR)[2025] KEELC 6924 (KLR)14 Oct 2025applied
- Chief of Kenya Defence Forces & another v Etyang (Civil Appeal E001 of 2024) [2025] KECA 1409 (KLR)[2025] KECA 1409 (KLR)31 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Safepak Ltd v Wambega & 11 others (Civil Appeal 8 of 2019) [2019] KECA 510 (KLR)", Case Analysis (2019). Environment and Land Appeal (Court of Appeal, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/510/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.