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ELCDismissedE.L.C. Constitutional Petition No. 22 of 2018· [2018] KEELC 294 (KLR)

James Kiongi Mwaura & 2 others v Cabinet Secretary for Environment and Forestry & another [2018] KEELC 294 (KLR)

Environment and Land Court
15 November 2018
KBK. Bor
2,210 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 dismissed both sides' claims, ruling that a broken land sale contract must be fought in an ordinary suit, not a constitutional petition.

What this practically means

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Executive summary

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The Ministry of Environment (renamed Ministry of Environment and Forestry) tendered in January 2016 to buy seven acres of land at Ruai, Nairobi, for a medical and hazardous waste facility. The Petitioners, trustees of the estate of the late Erastus Mwaura Kiongi, bid through their advocates and were recommended; a sale agreement dated 17/11/2016 was executed for plots excised from I.R. No. 9363/25 at a purchase price of Kshs. 245 million, with a 10% deposit of Kshs. 24.5 million. The Ministry paid the deposit but not the balance, later alleging through the National Land Commission's valuation office that the seven plots measured only ¾ of an acre each, part fell within the Nairobi River riparian reserve, the plots lacked separate titles, the subdivision was incomplete, and the beacon certificate was signed by a person holding himself out as owner. It cancelled the procurement, demanded a refund and re-tendered. The Petitioners petitioned, alleging violations of Articles 27, 28, 35, 40 and 47 and seeking declarations, Kshs. 15 million compensation, certiorari to quash the re-tender, damages for breach of contract and a mandatory injunction to pay the balance. The Attorney General filed a Cross Petition seeking indemnity and refund of Kshs. 24.5 million, alleging fraud and misrepresentation. Applying Anarita Karimi Njeru v Republic, the court held that the dispute was essentially contractual, that an ordinary suit was the proper vehicle, and that the Petitioners had failed to prove constitutional violations. It dismissed both the petition and the Cross Petition, ordered each party to bear its own costs, and directed that the Kshs. 24.5 million deposit be lodged in court or a joint interest-earning account within 30 days pending filing and determination of a suit on the alleged breach of the sale agreement.

Key legal issues

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01

Jurisdiction and appropriateness of constitutional petition for a contractual dispute

Holding

The dispute over breach of the sale agreement should be litigated in an ordinary suit, not a constitutional petition

Reasoning

Applying Anarita Karimi Njeru v Republic, the court held that parties alleging constitutional infringement must plead with precision. The substance of both petition and cross petition concerned breaches of contractual obligations under the sale agreement. The court considered that an ordinary suit would be the appropriate vehicle to determine breach of contract and the reliefs flowing from it, and declined to decide the contractual issues in the petition.

p. 3
02

Whether the Petitioners' constitutional rights were violated by cancellation of the procurement and demand for refund

Holding

The Petitioners failed to prove violations of Articles 27, 28, 35, 40 and 47

Reasoning

The Petitioners contended that cancellation of the contract and demand for refund of the deposit were actuated by malice, bad faith and discrimination, and violated their rights to dignity, information, property and fair administrative action. The court found the allegations unproved and accordingly dismissed the petition, while preserving the disputed deposit pending a substantive suit.

p. 3
03

Whether the Respondents' Cross Petition claim for refund of Kshs. 24.5 million should be granted

Holding

The Cross Petition was dismissed; the deposit was directed to be held in court or a joint interest-earning account pending determination in an ordinary suit

Reasoning

The Respondents alleged misrepresentation of acreage and ownership, failure to subdivide, and intention to defraud, and sought indemnity and refund of the deposit. The court did not grant those declarations in the constitutional proceedings but directed that the monies be secured in court pending filing and determination of a suit on the alleged breach of the sale agreement.

p. 3

Legal principles established

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  • A party seeking redress for constitutional violation must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement
  • Where the substance of a dispute is breach of contract, an ordinary suit, not a constitutional petition, is the appropriate forum

Court orders

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  1. 1.The petition is dismissed
  2. 2.The Cross Petition is dismissed
  3. 3.Each party will bear its own costs
  4. 4.The Petitioners are directed to deposit the sum of Kshs. 24.5 million paid by the Ministry as 10% deposit of the purchase price in court or in an interest earning account in the joint names of the advocates for both parties within 30 days of the date of the judgment, pending filing and determination of a suit on the alleged breach of the sale agreement

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19(1) & (2), 20(1) & (2), 21, 22, 23, 27, 28, 29, 35, 40(1), 42, 43, 44, 47, 48, 50(1) & (2), 69, 70, 162, 258(1), 259(1)
  • Public Procurement and Assets Disposal ActNo. 33 of 2015
  • Environment and Land Court Act
  • Fair Administrative Action ActSection 4
  • Law Society of Kenya Conditions of Sale

Cases cited (1)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
Jurisdiction invoked
Article 162 of the Constitution and the Environment and Land Court Act; Article 165 constitutional petition jurisdiction

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, "James Kiongi Mwaura & 2 others v Cabinet Secretary for Environment and Forestry & another [2018] KEELC 294 (KLR)", Case Analysis (2018). E.L.C. Constitutional Petition No. 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/294/eng@2018-11-15

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