Claasen v Commissioner of Lands & 4 others (Civil Appeal 85 of 2016) [2019] KECA 766 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a compensation claim under the Constitution doesn't die with the petitioner; the estate's legal representative can continue it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a constitutional petition seeking compensation for alleged unconstitutional deprivation of property can be continued by a legal representative of the petitioner after the death of the petitioner
- 2.Whether the right to institute court proceedings under Article 22(1) is a chose in action that survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act
- 3.Whether the constitutional petition abated upon the death of the sole petitioner
Key legal issues
#Whether the right to institute constitutional proceedings is a chose in action
The Court held that the right to institute proceedings under Article 22(1) is a chose in action, and the trial judge's finding to the contrary was erroneous in law.
Article 22(1) expressly confers the right to institute court proceedings and defines the cause of action as a claim that a Bill of Rights freedom has been denied, violated or infringed or is threatened. It does not matter that the right is exercised through a petition under the Practice and Procedure Rules. The learned judge's findings that the right was personal and not a chose in action were erroneous in law, especially since the claim also sought compensation of nearly Shs 14 billion, which survived for the benefit of the estate.
Whether the constitutional petition abated on the death of the sole petitioner
The petition did not abate; the finding of abatement, based on Ugandan statutory provisions, was contrary to section 2(1) of the Law Reform Act and section 82 of the Law of Succession Act and the purpose of Article 22(2).
The trial judge relied on Uganda's Rule 15(1) which expressly provides for abatement; Kenya has no equivalent provision. Instead, section 2(1) of the Law Reform Act provides that all causes of action subsisting in a deceased survive for the benefit of the estate, and section 82 of the Law of Succession Act empowers personal representatives to enforce such causes of action. The compensation claim for deprivation of property therefore survived and could be continued by the legal representative.
Availability of Civil Procedure Act/Rules in constitutional petitions
The Court noted there was no cross-appeal against the trial judge's finding that substitution may be based on the Civil Procedure Rules, and added that Rule 3(8) of the Practice and Procedure Rules gives the court inherent power to make orders for the ends of justice.
The Practice and Procedure Rules are silent on substitution of a deceased petitioner. The trial judge's finding that the Civil Procedure Rules could be relied on was not challenged by cross-appeal, so it stands. The Court supplemented this by pointing to the inherent power under Rule 3(8), and the constitutional obligation under Article 159(2)(d) and (e) to disregard procedural technicalities and protect the purpose and principles of the Constitution.
Personal actions and survival of causes of action
Causes of action of a personal nature do not survive for the benefit of the estate; the maxim actio personalis moritur cum persona applies to them, but a claim for compensation for deprivation of property is not of that nature.
The proviso to section 2(1) of the Law Reform Act excludes defamation, seduction, and marital causes of action as illustrations of personal actions; divorce and custody disputes are others. A cause of action is not synonymous with a chose in action: a cause of action is a combination of facts entitling a person to a remedy, while a chose in action includes a right to bring proceedings for recovery of a sum of money or pecuniary damages. The deceased's Article 40(1) property claim vested in him and survived for the estate.
Legal principles established
#- The right to institute court proceedings for enforcement of the Bill of Rights under Article 22(1) is a chose in action which, where the claim is for compensation, survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act and may be continued by the deceased's legal representative.
- Whether or not a right of action in a constitutional petition survives the death of the petitioner depends on the nature of the petition and the relief sought.
- The right to institute proceedings for enforcement of the Bill of Rights is not solely a personal right; it is also a collective obligation of every person to defend the Constitution, so such claims are not extinguished as purely personal actions.
- Where the constitutional petition procedure rules are silent, the court may rely on the Civil Procedure Act and Rules for substitution, and may invoke Rule 3(8) of the Practice and Procedure Rules and Article 159(2)(d) and (e) to make orders necessary for the ends of justice.
Court orders
#- 1.The appeal is allowed
- 2.The ruling of the trial court dated 2nd February, 2016 is set aside
- 3.The costs of the appeal shall be costs in the pending petition and in the discretion of the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kitale
- Constitutional Petition No. 7 of 2015 (originally Constitutional Petition No. 1 of 2013, High Court at Eldoret)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the Environment and Land Court
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.
That was a cause of action vested in him which survived for the benefit of the estate by virtue of section 2(1) of the Law Reform Act and which could be continued by the appellant as legal representative.
whether or not a right to action in a constitutional petition survives the death of the petitioner depends on the nature of the petition and the relief sought
The right to institute court proceedings is undoubtedly a chose in action.
For the foregoing reasons, the appeal is allowed and the ruling of the trial court dated 2nd February, 2016 is set aside.
As this is an interlocutory appeal, the costs of the appeal shall be costs in the pending petition and in the discretion of the trial court.
Issues in the judgment
#The judgment states the appellant is a son and legal representative, and elsewhere refers to 'his son, the respondent', apparently misdescribing the appellant as the respondent in paragraph 4.
The judgment quotes the Uganda Rule as referring to Article 137 of the Constitution but then quotes Article 137(1) as concerning interpretation of the Constitution by the Court of Appeal, which does not correspond to the described abatement rule context.
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.
- Kasuku v Osogo (Deceased) & 3 others (Environment and Land Case 40 of 2014) [2026] KEELC 1057 (KLR)[2026] KEELC 1057 (KLR)26 Feb 2026applied
- Kurere (Suing as a Legal Personal Representative of the Estate of the Robert Kiptalam Cheberek - Deceased) v County Land Adjudication & Settlement Officer, Trans Nzoia & 4 others; Managing Director, Agricultural Development Corporation & 3 others (Interested Parties) (Environment and Land Petition 3 of 2024) [2025] KEELC 6665 (KLR)[2025] KEELC 6665 (KLR)1 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Claasen v Commissioner of Lands & 4 others (Civil Appeal 85 of 2016) [2019] KECA 766 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/766/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.