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ELCStruck Out· [2017] KEELC 88 (KLR)

Solomon Mworia v Intex Construction Company Limited & another [2017] KEELC 88 (KLR)

Environment and Land Court
24 October 2017
3,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A landowner's constitutional petition over road construction damage was struck out because ordinary civil suits, not constitutional petitions, are the right vehicle for such claims.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Meru determined a preliminary objection raised by the 1st Respondent seeking dismissal of the petitioner's constitutional petition for failing to raise constitutional issues under Articles 26 and 40 of the Constitution. The 1st Respondent argued the dispute was one of trespass and nuisance properly belonging to the civil division, and that breaches were not specifically pleaded. The petitioner complained that during tarmacking of the Njoune K.K Road, his buildings were pulled down, rain run-off was diverted onto his land causing flooding, his livestock drowned, and portions of his land were taken without compensation. The court framed three issues: whether the petition was premised on private law, whether the constitutional court had jurisdiction, and whether breaches were specifically pleaded. On the first issue it held the petition was not purely individual-versus-individual since the State was a party. However, applying the Annarita Karimi Njeru precision requirement as restated in Mumo Matemu, the court found the Article 26 claims to be tortious matters quantifiable in ordinary civil litigation, and the Article 40 claim unsupported by any valuation, acreage or proper prayer for a declaration of illegal compulsory acquisition. The petition was struck out, with leave granted to pursue the claim before the Environment and Land Court or any other competent court or tribunal, with limitation running from the date of the ruling. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the petition raised constitutional issues under Articles 26 and 40

Holding

The Article 26 (right to life) claims were tortious (trespass, nuisance, flooding) and belong in ordinary civil litigation; the Article 40 claim was not properly anchored as no declaration of illegal compulsory acquisition was prayed and no evidence of the extent of deprivation was given

Reasoning

The court found the right-to-life complaints quantifiable in tort and the property claim unsupported by a valuation, acreage or negotiation, and lacking a proper prayer. Both fell short of the Annarita precision threshold, so the petition could not proceed as constitutional litigation.

p. 4
02

Whether the petition was a purely private-law dispute given the involvement of the State as 2nd Respondent

Holding

Because the state was a party and the claim concerned compulsory acquisition, the claim was intertwined and the objection that it was purely individual-versus-individual failed on that point

Reasoning

The court held that since the petitioner claimed his land was compulsorily acquired at the behest of the 2nd Respondent (the State), the claims against the respondents were intertwined, so this was not a pure private individual versus private individual dispute; the preliminary objection failed on that narrow point.

p. 4
03

Whether the breaches were specifically pleaded

Holding

The petition merely quoted omnibus provisions without stating how they were contravened; it failed the precision requirement

Reasoning

Relying on Annarita Karimi Njeru and Mumo Matemu, the court held the petition failed to identify the provisions infringed and the manner of infringement with reasonable precision, particularly the absence of any prayer for a declaration of illegal compulsory acquisition.

p. 4

Legal principles established

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  • A party seeking redress under the Constitution must state with reasonable precision the provision infringed and the manner of infringement (Annarita Karimi Njeru principle)
  • Where a remedy is available under other legislative provisions, the Constitution should not be invoked

Court orders

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  1. 1.The Petition is struck out
  2. 2.Petitioner granted leave to pursue his claim before the Environment and Land Court or any other court or tribunal of competent jurisdiction, with limitation running from the date of the ruling
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21, 22, 26, 40(3)
  • Civil Procedure ActCap 21
  • Environment Management and Co-ordination Actnot specified

Cases cited (13)

  • Kenya Bus Services Ltd vs Attorney General & 2 others
    (2005) 1 KLR
  • Francis Gathungu Waithaka vs Kenyatta University
    (2011)
  • Teitnang vs Ariong
    (1987) LRC (Const) 577
  • Uhuru Muigai Kenyatta v Nairobi Star Publication Limited
    [2013] eKLR
  • Stephen Saitoti vs Coca Cola Sabco Nairobi Bottlers Ltd & Another
    (2013) eKLR
  • Re Application by Bahadur
    (1986) LRC 297
  • Alphonse Mwangemi Munga & 10 Others vs African Safari Club Limited
    (2008) eKLR
  • Richard Nduati Kaziuki vs Leonard Nduati Kaziuki & Another
    (2006)
  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    [2012] eKLR
  • Annarita Karimi Njeru
    (1976-1980) 1 KLR
  • Rashid Odhiambo Aloggoh & 245 Others vs HACO Industries
    CA 110/01
  • Harrikisson vs Attorney General of Trinidad and Tobago
    (1980) AC 265
  • Mumo Matemu v Trusted Society of Human Rights Alliance and others
    Nairobi CA Civil Appeal No. 290 of 2013
Jurisdiction invoked
Articles 22, 26 and 40 of the Constitution of Kenya, 2010

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, "Solomon Mworia v Intex Construction Company Limited & another [2017] KEELC 88 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/88/eng@2017-10-24

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