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ELCPartially AllowedNotice of motion dated 16th December 2015 (Constitutional Petition, Mombasa High Court)· [2016] KEELC 211 (KLR)

Petro Cannobio & 2 others v Petro Cannobio & 11 others [2016] KEELC 211 (KLR)

High Court of Kenya
11 November 2016
AOA. Omollo
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Mombasa struck out a land ownership petition because the court order it was built on had already been overturned on appeal.

What this practically means

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Executive summary

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This was a notice of motion dated 16th December 2015, filed by Cootow & Associates for the 6th Respondent under Rules 3(5) and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, seeking that a constitutional petition be struck out or dismissed on the ground that it had been overtaken by events. The foundation of the petition was a mandamus order granted in Mombasa High Court Judicial Review Miscellaneous Application No 2 of 2008 compelling the Senior Registrar of Titles to transfer plot LR No 17835 (CR No 35336) to Brawny Properties Limited, the 2nd petitioner. The Court of Appeal, in Civil Appeal No 161 of 2009 delivered on 14th November 2014, set aside that order. The petitioners opposed, contending that the petition concerned alleged contravention of fundamental rights and freedoms and criminal proceedings in Mombasa CMCr Case No 3905 of 2010, matters distinct from the judicial review issues, and urged that the petition be kept in abeyance pending Malindi ELC Case No 51 of 2016. Justice A. Omollo held that the petitioners' claimed proprietorship derived entirely from the mandamus order, whose setting aside restored the parties to their pre-order position; no amendment could cure the petition. The Court allowed the application, struck out the petition, ordered the petitioners to pay half the costs of the petition to the 3rd to 9th Respondents, and awarded the costs of the application to the applicants.

Key legal issues

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01

Whether the petition was overtaken by events following the Court of Appeal's setting aside of the JR No 2 of 2008 mandamus order

Holding

The petition, whose foundation was the mandamus order, was overtaken by events and was struck out

Reasoning

The petitioners' claimed proprietorship of LR No 17835 derived from the mandamus order in JR No 2 of 2008. The Court of Appeal set that order aside, restoring the parties to their pre-order position. No amendment could cure the petition; the Court of Appeal had pointed to other avenues, which the petitioners had already used by filing Malindi ELC Case No 51 of 2016. The petition therefore had no legs to stand on.

p. 4
02

Whether striking out is justified despite the principle that it should be exercised sparingly (DT Dobie)

Holding

Yes - this was a clear case for striking out

Reasoning

Although the Court of Appeal in DT Dobie counsels sparing use of striking-out, the decisive consideration here was that the very foundation of the petition - the JR mandamus order - had been set aside. Keeping the petition alive or in abeyance would waste judicial time and serve no purpose, especially since the proprietary issues could be litigated in the newly filed Malindi ELC suit.

p. 4

Legal principles established

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  • Setting aside an order of mandamus takes away rights or privileges founded on it and restores parties to their pre-order position
  • A petition founded solely on an order later set aside on appeal is overtaken by events and is a clear case for striking out

Court orders

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  1. 1.The application dated 16th December 2015 is allowed
  2. 2.The petition is struck out
  3. 3.The petitioners to pay ½ costs of the petition to the 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents
  4. 4.The costs of the application are awarded to the applicants

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 3(5) and 19
  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure RulesOrder 2 rule 15
  • Constitution of KenyaArticles 48 and 159

Cases cited (6)

  • Uganda Corporation Creamaries Ltd
    Uganda Court of Appeal Case No 11 of 1999
  • Fredrick Karisa Shungu & 3 Others -vs- Geoffrey Gidyo Dida
    (2012) eKLR
  • Commissioner of Lands vs Kunste Hotel Ltd
    null
  • DT Dobie (K) Ltd vs Muchina
    (1982) KLR 1
  • Ramji Megji Gudka vs Alfred Morfat Michira & 2 Others
    (2005) eKLR
  • Blue Sky EPZ Ltd vs Notalia Polyakova & Another
    (2007) eKLR
Jurisdiction invoked
Rule 3(5) and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Petro Cannobio & 2 others v Petro Cannobio & 11 others [2016] KEELC 211 (KLR)", Case Analysis (2016). Notice of motion dated 16th December 2015 (Constitutional Petition, Mombasa High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/211/eng@2016-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.