Josephine Wairimu Githinji v Lucy Wanjiru Murimi & 3 others [2017] KEELC 604 (KLR)
The bottom line
#The Environment and Land Court dismissed a widow's constitutional petition, ruling it was a disguised appeal against land decisions already settled by other courts.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the pleading threshold for constitutional petitions
The court found the Anarita Karimi threshold was met, as the Petitioner pleaded the specific articles relied upon
The court applied the Anarita Karimi Njeru standard as augmented by the Court of Appeal in Mumo Matemu. The Petitioner had cited specific constitutional provisions (Articles 28, 40, 45 among others) and the court was satisfied the standard of setting out the specific right and manner of violation had been met. The failure of the petition lay not in pleading but in substance.
Whether the Petitioner's constitutional rights to dignity and property were infringed
No infringement was established; the Petition was a disguised appeal against previous court decisions and an abuse of process
The court held that issues of ownership of the suit parcels had been fully determined in succession proceedings in which the Petitioner was a party, upheld on appeal to the Court of Appeal. The claims regarding marriage status were not justiciable constitutional issues. The Petition sought to re-litigate concluded matters under the guise of a rights petition and was described as premised on quicksand.
Whether the court could grant declarations nullifying transfers and restoring titles
It could not; granting the orders would amount to reversing orders of a court of equal jurisdiction and one of superior jurisdiction
The succession proceedings culminating in a dismissed appeal to the Court of Appeal had finally settled ownership of the parcels in favour of the 1st to 3rd Respondents. A constitutional court cannot sit as a court of appeal over its peers or superior courts. Additionally, the Petitioner sued in her personal capacity, not as legal representative of the deceased.
Legal principles established
#- A constitutional petition must set out with particularity the specific constitutional right alleged to have been violated and the manner of violation
- A constitutional petition cannot be used as a disguised appeal to overturn decisions of a court of equal or superior jurisdiction; to do so would be an abuse of process
- Only a person with an interest in land can allege violation of a constitutional right in respect of that land, and a registered owner may lawfully dispose of his land during his lifetime
Court orders
#- 1.The Petition is dismissed with costs to the 1st, 2nd and 3rd Respondents
- 2.Further order: Kerugoya ELC No. 120 of 2013 be heard by another Court as it involves the same subject matter
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Wairimu Githinji v Lucy Wanjiru Murimi & 3 others [2017] KEELC 604 (KLR)", Case Analysis (2017). Constitutional Petition (Kerugoya), filed 9th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/604/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.