Yasmin Rashid Ganatra & another v Gulzar Abdul Wais & another [2017] KEELC 1089 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a constitutional petition over an inherited Meru home, ruling the dispute was already decided and can't be brought between private individuals.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
The Petition is res judicata because the validity of the will and the applicable succession law were conclusively determined in Succession Cause No. 290 of 2010 and Civil Appeal No. 45 of 2014; filing it a month after the Court of Appeal decision was meant to derail those orders.
The court found the Petition itself admitted the will's validity was contested in the succession cause and appeal. Both Lessit J and the Court of Appeal (Nambuye JA) had made conclusive pronouncements on whether the estate devolved under the Law of Succession Act or Islamic law. The Petitioners themselves initiated the succession proceedings by citation and opposed annulment of the grant, so they could not relitigate the issue. Filing within a month of the Court of Appeal judgment was intended to derail its directions.
Whether a constitutional petition can be lodged between two private parties
It cannot; the duty to respect and fulfil Bill of Rights obligations rests on the State and state organs, so the Petition did not meet the constitutional threshold.
Relying on Article 21(1), the court held the Bill of Rights duty is bestowed on the State and state organs. Adopting the Kiribati decision in Teitinang v Ariong as adopted by Lenaola J, and Nyamu J in Kenya Bus Services, the court held individuals owe no constitutional duties to each other and the Constitution is not a substitute for claims under substantive law. Alternative remedies being available was no bar, but the Bill of Rights should be invoked only when extremely necessary.
Legal principles established
#- A matter is res judicata if it seeks to canvass a subject which was also canvassed in another suit
- Fundamental rights under the Bill of Rights are enforceable against the State and state organs, not by a private individual against another private individual
- Where infringement of rights can found a claim under substantive law, the proper course is to bring the claim under that law and not under the Constitution
Court orders
#- 1.Notice of Preliminary Objection upheld as merited
- 2.Petition struck out with costs to Respondents
- Jurisdiction invoked
- Articles 22(1), 23(1) and 165 of the Constitution (as invoked by Petitioners); objection that matter falls outside Article 165 jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yasmin Rashid Ganatra & another v Gulzar Abdul Wais & another [2017] KEELC 1089 (KLR)", Case Analysis (2017). Petition filed 11.11.2015 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1089/eng@2017-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.