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ELCStruck OutConstitutional Petition (Nyeri) with Notice of Motion, filed 22nd September 2015· [2016] KEELC 1317 (KLR)

Kenya Planters Co-operative Union Ltd v Kenya Co-operatives Coffee Millers Ltd & another (Environment and Land Constitutional Petition 7 of 2015) [2016] KEELC 1317 (KLR)

Environment and Land Court
22 April 2016
BOB.N. Olao
2,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a constitutional petition filed while an appeal on the same dispute was already pending, warning against duplicate cases.

What this practically means

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Executive summary

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The petitioner and the 1st respondent were engaged in Nyeri Business Premises Rent Tribunal Case No. 200 of 2014 over a license agreement concerning storage and milling facilities on parcel No. Kiine/Sagana/388/77. The petitioner's preliminary objection challenging the Tribunal's jurisdiction was dismissed on 20th November 2014, and the petitioner appealed to the Environment and Land Court at Kerugoya in Civil Appeal No. 60 of 2014, which remained pending. While that appeal was pending, the petitioner filed the present constitutional petition and a Notice of Motion seeking, among other things, a declaration that the Tribunal lacked jurisdiction over licensor/licensee disputes, certiorari to quash the Tribunal's ruling, prohibition against further Tribunal proceedings, and a mandatory injunction restraining the 1st respondent from interfering with its milling facilities, citing alleged violations of Articles 40, 47 and 50 of the Constitution. The 1st respondent opposed the application, arguing that the ruling was not capable of being stayed, that the issues were sub-judice, and that the petitioner had not disclosed the pending appeal. The Court held that the petition raised substantially the same issues as the pending appeal and was a collateral attack on the Tribunal's ruling, amounting to an abuse of the Court's process. Applying the Karume principle, the Court held that the petitioner should pursue the statutory appeal under Section 15(1) of Cap 301, and that constitutional petitions are amenable to the sub-judice rule under Section 6 of the Civil Procedure Act. The Court struck out both the petition and the Notice of Motion and ordered the petitioner to pay the 1st respondent's costs.

Key legal issues

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01

Whether filing a constitutional petition while an appeal on the same issues is pending constitutes abuse of process

Holding

Yes; the petition and motion were struck out as an abuse of the Court's process

Reasoning

The petitioner had already appealed to the Environment and Land Court under Section 15(1) of Cap 301 against the Tribunal's ruling dismissing its preliminary objection on jurisdiction. The petition raised substantially the same issues, including alleged violation of the right to a fair hearing and the Tribunal's jurisdiction. Filing the petition during the pendency of the appeal at the same Court amounted to a collateral attack on the Tribunal's ruling and an abuse of process, which Rule 3(8) of the Mutunga Rules obliges the Court to strike out.

p. 5
02

Whether the sub-judice rule applies to constitutional petitions

Holding

Yes; Section 6 of the Civil Procedure Act applies to petitions as 'proceedings'

Reasoning

The Court reasoned that the words 'or proceeding' in Section 6 of the Civil Procedure Act bring constitutional petitions within the sub-judice rule. Since Kerugoya Environment and Land Court Civil Appeal No. 60 of 2014, in which substantially the same issues are raised, was still pending, the petition was sub-judice.

p. 6
03

Whether the petitioner should pursue the statutory appeal instead of the petition

Holding

Yes; the appeal is the proper procedure for addressing its grievances

Reasoning

Section 15(1) of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act provides a 30-day window to appeal Tribunal determinations to the Environment and Land Court. The petitioner had invoked that provision. Following the Karume principle, where a clear procedure for redress is prescribed, it should be strictly followed; the petition was unnecessary and should be struck out.

p. 6

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • A constitutional petition is subject to the sub-judice rule just like any other civil proceeding
  • A court has inherent jurisdiction to strike out proceedings amounting to an abuse of its process, including constitutional petitions
  • Collateral attack on a judgment through a constitutional reference while an appeal is pending subverts the rule of law

Court orders

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  1. 1.The Constitutional Petition and the Notice of Motion accompanying it struck out as an abuse of the process of the Court
  2. 2.The petitioner to meet the 1st respondent's costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticles 22 and 23
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (The Mutunga Rules)Rule 3(8)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of KenyaSection 15(1); Section 12
  • Civil Procedure ActSection 3A; Section 6

Cases cited (7)

  • Benosi v Wiyley
    1973 C.A 721
  • Margaret Migwi v Barclays Bank of Kenya Ltd
    2016 eKLR (C.A Civil Appeal No. 68 of 2015 Nyeri)
  • Chokolingo v Attorney General Trinidad And Tobago
    (1981) V.L.R 108
  • Maharaj v Attorney General of Trinidad and Tobago (No. 2)
    (1979) A.C 385
  • The King v The General Commissioner For The Purpose Of Income Tax Acts For The District Of Kensington Ex-parte Princes Edmond De Polignal
    (1917) K.B 486
  • The Speaker of The National Assembly v James Njenga Karume
    C.A Civil Appeal No. 92 of 1992 (NBI)
  • Kones v Republic and Another Ex-parte Kimani Wa Nyoike and Others
    (2008) 3 K.L.R E.P 29
Jurisdiction invoked
Articles 22 and 23 of the Constitution read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Planters Co-operative Union Ltd v Kenya Co-operatives Coffee Millers Ltd & another (Environment and Land Constitutional Petition 7 of 2015) [2016] KEELC 1317 (KLR)", Case Analysis (2016). Constitutional Petition (Nyeri) with Notice of Motion, filed 22nd September 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1317/eng@2016-04-22

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