Frankline Kithinji Murithii v Loyford Riungu Murithii & 4 others [2014] KECA 491 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a losing party cannot dress up an ordinary land dispute as a human rights violation, and dismissed the appeal with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal could grant the reliefs sought in the memorandum of appeal
Most of the reliefs (contempt conviction, new conservatory order, costs in unrelated proceedings) could only be granted by a court of original jurisdiction or in separate proceedings and were refused.
The Court emphasized that it exercises appellate jurisdiction only. Contempt requires its own procedure; the conservatory order was never sought before the trial court; costs in Chuka P.M.C.C. No. 27 of 2010 and the land dispute committee were not subject matter of the constitutional application. Following Chokolinyo and Maharaj, an erroneous judgment is remedied by appeal, not by a rights claim.
Whether the appellant's rights to freedom from torture and cruel, inhuman or degrading treatment were infringed
No. On re-appraisal there was no evidence of physical or psychological abuse; complaints in annextures FK1 and FK2 were unverified and the water disconnection was effected by a non-party water society.
The Court adopted definitions of torture from ex parte Sitamze, Suresh and Szocik, noting torture extends to mental and psychological suffering. The annextures disclosed only boundary and disturbance complaints to police whose veracity was never established; trespass has a clear remedy in a civil action; and mere allegations cannot prove persistent psychological torture.
Whether the trial judge erred by not considering the appellant's submissions, exhibits and annextures
No. The ruling shows the annextures FK1, FK2, FK3A, FK5, FK7A and FK8 were considered and relied upon, including in restraining the water society.
The Court found the ground of appeal had no merit: the trial judge expressly analysed the annextures and even granted relief against the Murugi Mugumango Water Society based on annexture FK3A. The failure-to-consider ground was thus demonstrably contradicted by the face of the ruling.
Whether the appellant's right to own and acquire property was infringed by demands that he vacate the mother's house
No infringement; the appellant holds no exclusive entitlement to Land Parcel Mwimbi/Murugi 1478 or the house, which under the consent in Nyeri Civil Appeal No. 77 of 2006 is to be held in trust for estranged daughters and grandchildren.
The distribution of the estate is governed by the consent of 4th November 2011 and the judgment of 17th May 2012 in Civil Appeal No. 77 of 2006, under which the appellant was not granted exclusive use, possession or title to the parcel. Any trespass claim has a separate civil remedy.
Legal principles established
#- A first appeal on facts is by way of retrial; the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses.
- The Court of Appeal has no original jurisdiction in civil, criminal and constitutional matters; reliefs that must be granted in the first instance are beyond its appellate remit.
- A wrong judgment or order is not itself a contravention of a fundamental right; the remedy for error is appeal, not a constitutional petition.
- A single incident of trespass to land is neither proof of torture nor proof of cruel or inhuman treatment.
- Contempt proceedings cannot be pursued within an unrelated appeal; there are laid-down procedures for instituting them.
Court orders
#- 1.Appeal dismissed with costs
- 2.The High Court ruling that the respondents did not breach the appellant's fundamental rights affirmed
- On appeal from
- High Court of Kenya at Meru
- High Court Constitutional Application No. 21 of 2011
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court ruling in a constitutional application (first appeal); articles 29, 40, 47, 27, 28, 31, 32 and 25(a) of the Constitution invoked by the appellant
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamami & another v Attorney General (Civil Appeal 189 of 2017) [2019] KECA 437 (KLR)[2019] KECA 437 (KLR)6 Aug 2019applied
Cite this brief
#Cite this brief
Caselaw, "Frankline Kithinji Murithii v Loyford Riungu Murithii & 4 others [2014] KECA 491 (KLR)", Case Analysis (2014). Civil Appeal No. 43 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/491/eng@2014-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.