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ELCDismissedELC Petition (the fourth in the series; related petitions ELC Petition Nos. 2, 3 and 6 of 2017)· [2017] KEELC 2028 (KLR)

Elijah Njeru Gachoki & 7 others v Cabinet Secretary Ministry of Land Housing & Urban Development & 15 others [2017] KEELC 2028 (KLR)

Environment and Land Court
10 July 2017
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to throw out Kirinyaga residents' Mwea land petition, ruling their arguments needed a full hearing, not a shortcut dismissal.

What this practically means

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Executive summary

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By a petition dated 8th February 2017, the Petitioners, adults from Kirinyaga County acting on their own behalf and as members of the Kirinyaga Mihiriga Kenda, sought ten reliefs concerning the status of Mwea Trust Land/Mwea Settlement Scheme (located in Embu County but claimed to have historically belonged to Kirinyaga) and grievances over land adjudication in which about 600 of their members were allegedly omitted and 2000 strangers introduced. Together with a companion application for conservatory orders, the petition was the fourth in a series of related petitions (ELC Petition Nos. 2, 3 and 6 of 2017). The 3rd Respondent filed a notice of preliminary objection on 21st March 2017 arguing that the matter was a county boundary dispute vesting in the Inter-Governmental Relations Committee; that land adjudication vests exclusively in Land Adjudication Officers under the Land Adjudication Act; that the petition was res judicata given Kerugoya High Court ELC No. 119 of 2013; and that no cause of action was disclosed against the 3rd Respondent, seeking striking out with costs. Applying the Mukisa Biscuits test, Angima J held that the boundary and adjudication limbs required ascertainment of facts, since the dispute was not solely between the two county governments and residents' grievances were evident. On res judicata, the requirements of section 7 of the Civil Procedure Act, particularly identity of parties, were not established on the face of the record. The court also held that a specific cause of action against every respondent is unnecessary in a constitutional petition. The preliminary objection was dismissed with costs to the Petitioners, with liberty to argue the points at the hearing of the main petition.

Key legal issues

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01

Whether the county boundary issue must go to the Inter-Governmental Relations Committee as a preliminary point

Holding

No - the true nature of the dispute requires factual ascertainment; the petition does not disclose a dispute solely between two county governments

Reasoning

While the Inter-Governmental Relations Committee is competent to deal with disputes between governments, the petition discloses that residents of Kirinyaga County may themselves have grievances, and both county governments are joined as Respondents. The court therefore could not determine the character of the dispute without investigating facts, which disqualifies it as a pure point of law.

p. 4
02

Whether the res judicata objection (Kerugoya High Court ELC No. 119 of 2013) could be determined as a preliminary point

Holding

No - the requirements of section 7 of the Civil Procedure Act were not evident on the face of the record, particularly identity of parties

Reasoning

The court applied the test in section 7 of the Civil Procedure Act and the cited authorities. On the face of the pleadings several Respondents were not parties to the earlier proceedings, and it was not enough that one or two Petitioners had been parties previously. Additional facts required ascertainment before a definitive decision.

p. 4
03

Whether failure to plead a specific cause of action against the 3rd Respondent warranted striking out

Holding

No - a respondent may be joined as a necessary party or one affected by the outcome

Reasoning

The court held that constitutional petitions do not require a specific cause of action against every respondent. Joinder of a necessary party or a party potentially affected by the outcome is permissible, so the absence of a discrete claim against the 3rd Respondent could not sustain the objection.

p. 4

Legal principles established

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  • A preliminary objection cannot be sustained where facts must be ascertained or judicial discretion exercised
  • In a constitutional petition it is not necessary to establish a specific cause of action against every respondent; necessary parties may be joined

Court orders

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  1. 1.The 3rd Respondent's notice of preliminary objection dated 21st March 2017 is dismissed
  2. 2.Costs of the preliminary objection to the Petitioners
  3. 3.The 3rd Respondent is at liberty to argue the points raised in the preliminary objection during the hearing of the main petition

Authorities

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Legislation

  • Inter-Governmental Relations ActNo. 2 of 2012
  • Land Adjudication Actnot specified
  • Civil Procedure Actsection 7

Cases cited (3)

  • Mukisa Biscuits Co Ltd v. West End Distributors Ltd
    [1969] EA 696
  • Nicholas Njeru v. Attorney General & 8 Others
    [2013] eKLR
  • Uhuru Development Co. Ltd v. Central Bank of Kenya & 2 Others
    Civil Appeal No. 36 of 1996
Jurisdiction invoked
Article 165(2) as read with Article 162(2) of the Constitution (Environment and Land Court original jurisdiction over the constitutional petition) - not expressly quoted in the ruling

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, "Elijah Njeru Gachoki & 7 others v Cabinet Secretary Ministry of Land Housing & Urban Development & 15 others [2017] KEELC 2028 (KLR)", Case Analysis (2017). ELC Petition (the fourth in the series; related petitions ELC Petition Nos. 2, 3 and 6 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2028/eng@2017-07-10

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