Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (constitutional petition by the late Nicolaas Hendrick Claasen; notice of motion dated 23.10.2014)· [2016] KEELC 1063 (KLR)

Nicolaas Hendrick Claassen v Commissioner of Lands & 4 Others [2016] KEELC 1063 (KLR)

Environment and Land Court
2 February 2016
EOE. Obaga
1,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by E. Obaga J of the Environment and Land Court at Kitale, delivered on 2 February 2016, dealt with a notice of motion dated 23.10.2014 in which Karl Wehner Claassen, son and administrator of the late Nicolaas Hendrick Claasen, sought to be substituted as petitioner in a constitutional petition. The deceased had petitioned five respondents alleging violations of Articles 21, 21(3) and 27, and sought a declaration that his forceful eviction from thirteen parcels of land totalling 4,638 acres and their distribution violated Article 40(1), claiming compensation of Kshs. 13,914,000,000. He died on 26.5.2014 before the petition could be heard. The 1st to 4th respondents opposed the substitution, arguing the application was defective, invoked wrong provisions, and that a claim for declarations of personal constitutional rights could not survive the deceased. The court framed two issues: whether the Civil Procedure Act and Rules apply to constitutional petitions, and whether a sole petitioner's petition survives his death. On the first, it held an application is not defeated by citing wrong provisions, the overriding objective favouring substantive justice. On the second, it held the deceased's unascertained personal rights were not a chose in action capable of assignment; borrowing from the Ugandan case of Philip Karugaba v Attorney General, the court held the petition abated. The application was dismissed with no order as to costs, the estate being left at liberty to pursue any claim that survived the deceased, subject to the Limitation of Actions Act.

Key legal issues

#
01

Applicability of the Civil Procedure Act and Rules to constitutional petitions

Holding

The Mutunga Rules govern the filing of constitutional petitions, but an application is not defeated merely for invoking the Civil Procedure Act and Rules; the overriding objective under Article 259(1) favours substantive justice.

Reasoning

Counsel for the respondents argued that only the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules) apply to constitutional petitions. The court agreed those Rules prescribe Notice of Motion (Form D, Rule 19) as the mode of application, but held that citing the wrong provisions is a technicality. The Mutunga Rules themselves direct interpretation to further the overriding objective consistent with Article 259(1) of the Constitution, so there was nothing wrong in invoking the Civil Procedure Rules and Act.

p. 2
02

Whether a sole petitioner's constitutional petition survives his death

Holding

The petition abates. Declarations of unascertained personal rights are not a chose in action and cannot be taken over by an administrator or beneficiary; substitution is not possible.

Reasoning

The court examined the petition's prayers, which sought declarations that Articles 21, 21(3), 27 and 40(1) had been violated. Relying on Black's Law Dictionary, a declaration of rights concerns rights that are uncertain; the deceased's rights were unascertained and personal to him at his death. Borrowing from the Ugandan decision in Philip Karugaba v Attorney General, where Rule 15 of the Ugandan constitutional rules providing for abatement was upheld, the court concluded the petition abated. The estate may still file a claim for what survived the deceased, subject to the Limitation of Actions Act.

p. 3

Legal principles established

#
  • An application cannot be defeated solely because it cites the wrong provisions of the law; the court's concern is substantive justice
  • A constitutional petition by a sole petitioner seeking declarations of personal, unascertained rights does not survive the petitioner's death; the petition abates and there can be no substitution

Court orders

#
  1. 1.Dismissal of the notice of motion dated 24.10.2014 (the application for substitution) with no order as to costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 1 Rule 10
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)Rule 19; Form D
  • Constitution of KenyaArticles 21, 21(3), 27, 40(1), 259(1)
  • Limitation of Actions ActGeneral (referred to as the law of limitation of actions)

Cases cited (1)

  • Philip Karugaba -vs- The Attorney General
    Petition No. 11 of 2002
Jurisdiction invoked
Original constitutional jurisdiction under Articles 21, 21(3), 27 and 40(1) of the Constitution; application under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules

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.

Cite this brief

#

Cite this brief

Caselaw, "Nicolaas Hendrick Claassen v Commissioner of Lands & 4 Others [2016] KEELC 1063 (KLR)", Case Analysis (2016). Not stated in the judgment (constitutional petition by the late Nicolaas Hendrick Claasen; notice of motion dated 23.10.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1063/eng@2016-02-02

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