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ELCDismissedConstitutional Petition (Kerugoya), filed 20th January 2017· [2017] KEELC 664 (KLR)

Margaret Wairimu Magara & another v Faith Wanjiku Gikunju [2017] KEELC 664 (KLR)

High Court of Kenya (Environment and Land/Constitutional jurisdiction, Kerugoya)
24 November 2017
BOB.N. Olao
2,394 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 Kerugoya dismissed a land dispute petition because it was vaguely drafted and the petitioners walked out of court and lost their chance to be heard.

What this practically means

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Executive summary

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This petition arose from Wanguru Senior Resident Magistrate's Court Civil Case No. 30 of 2005, in which Simon Gikunju Kago claimed ownership of extra fields attached to rice holdings, was heard on 1 July 2010 after the trial magistrate declined an adjournment sought by counsel holding brief, and judgment was entered for the plaintiff on 19 August 2010, with execution following. The Petitioners, Margaret Wairimu Magara and another, filed a constitutional petition in January 2017 citing Articles 22 and 40(1) of the Constitution, seeking declarations that they own the extra fields and that any judgment entered against them without a fair hearing is null and void. The Respondent, Faith Wanjiku Gikunju, who substituted the original plaintiff, averred that the Petitioners and counsel holding brief walked out of court when the adjournment was refused, and that the Petition was intended to pre-empt execution. The court applied the Anarita Karimi Njeru principle, as reinforced by Mumo Matemu, and found the Petition failed to particularise the constitutional provisions said to be infringed. Inferring an Article 50(1) complaint, the court held that because the unrebutted averment showed the Petitioners walked out, their opportunity to be heard was availed but squandered, and that granting an adjournment was within the trial magistrate's discretion. It also found no arbitrary deprivation of property under Article 40(1), the dispute having been determined by a competent court. Noting that the Attorney General should have been the Respondent given the complaint against the magistrate's conduct, the court nonetheless dismissed the petition with costs to the Respondent on 24 November 2017.

Key legal issues

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01

Precision in framing constitutional petitions

Holding

The Petition cited Articles 22 and 40(1) but failed to particularise the alleged violations, contravening the Anarita Karimi Njeru principle

Reasoning

The court applied Anarita Karimi Njeru as reinforced by Mumo Matemu, noting the Petition made no reference to the cited constitutional provisions in its body and left the court to infer a violation of Article 50(1) not pleaded by the Petitioners.

p. 3
02

Alleged violation of the right to a fair hearing (Article 50(1))

Holding

No violation; the Petitioners walked out after the adjournment application was refused and could have conducted their own defence

Reasoning

The unrebutted averment that the Petitioners and counsel holding brief walked away when the matter was reached for hearing meant the opportunity to cross-examine and give their defence was availed but squandered; the grant of adjournment was within the trial magistrate's discretion.

p. 4
03

Alleged violation of the right to property (Article 40(1))

Holding

No violation; the property dispute was determined by a competent court and not arbitrarily taken away

Reasoning

The trial court was competent, judgment was delivered in the parties' presence, and no appeal was filed against it; execution followed in accordance with that judgment.

p. 4
04

Proper respondent for complaints against a magistrate's conduct

Holding

The Attorney General ought to have been the Respondent, though the misjoinder could not of itself defeat the Petition

Reasoning

The issues touched on the conduct of the trial magistrate; under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules misjoinder does not defeat a petition, but the Petitioners were themselves guilty of condemning an important party unheard.

p. 4

Legal principles established

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  • A party must set out with reasonable precision the provision infringed and the manner of infringement when seeking redress on a constitutional question
  • Once a reasonable opportunity to be heard is given and not utilised, a party cannot claim violation of the right to be heard

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Costs of the Petition awarded to the Respondent
  3. 3.Right of appeal explained

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rulesmisjoinder/non-joinder provision

Cases cited (3)

  • Anarita Karimi Njeru vs Republic
    1979 K.L.R 154; 1976-80 1 K.L.R 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & Others
    C.A Civil Appeal No. 290 of 2012 (2013 eKLR)
  • The Union Insurance Company of Kenya Ltd vs Ramzan Abdul Dhanji
    C.A Civil Application No. 179 of 1996 (unreported)
Jurisdiction invoked
Articles 22 and 40(1) of the Constitution (constitutional petition invoking Bill of Rights enforcement)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Margaret Wairimu Magara & another v Faith Wanjiku Gikunju [2017] KEELC 664 (KLR)", Case Analysis (2017). Constitutional Petition (Kerugoya), filed 20th January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/664/eng@2017-11-24

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