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ELCStruck OutNot stated in the judgment· [2018] KEELC 1375 (KLR)

James Kigen Rotich v Stella Chepkogei Mclean & 3 others [2018] KEELC 1375 (KLR)

Not named in the judgment (delivered at Kitale)
26 September 2018
MNMwangi Njoroge
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner sued claiming to be the lawful owner of Eldoret Municipality Block 21/(King'ong'o) 1668, alleging the land was charged to Equity Bank (3rd respondent), sold at public auction on 15th November 2011 for Kshs. 600,000/-, and vested in him by a vesting order of the Principal Magistrate on 30th August 2012. He complained that the 2nd respondent thereafter obtained orders before a Senior Principal Magistrate in Kitale recognizing her interest in the property, and sought declarations that his rights under Articles 27, 40 and 159 of the Constitution were violated, an order compelling release of the title documents, and costs. The 1st and 2nd respondents denied the auction, alleged the certificate of sale was backdated, asserted the 2nd respondent had purchased the land in 1987 and acquired title by adverse possession, and contended no constitutional issue arose. Equity Bank maintained an auction occurred and the petitioner was the highest bidder. The court framed three issues: violation of rights, proper procedure, and appropriate orders. It held the petition fatally defective because it was unsupported by any affidavit, leaving conclusory statements and uncontroverted sworn evidence from the respondents. It further held the petition was procedurally improper since the merits were the subject of a pending appeal (Kitale HCCA No. 104 of 2015), invoking Harrikissoon and Alphonse Mwangemi Munga on the exhaustion of alternative remedies. The petition was struck out with no orders as to costs.

Key legal issues

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01

Whether the petitioner established violation of his constitutional rights

Holding

No - the petition had no supporting affidavit, leaving only conclusory statements, and the only sworn evidence came from the respondents

Reasoning

The court noted no supporting affidavit was attached to the petition and none was filed later to counter the respondents' affidavits. Unsworn statements in a petition are mere conclusory assertions. Uncontroverted sworn evidence from the respondents could pass for the truth. The court therefore could not determine whether the rights under Articles 27, 40 and 159 existed or were violated, rendering the petition fatally defective.

p. 2
02

Whether the petition was the proper procedure

Holding

No - the issues belong to the pending appeal in Kitale HCCA No. 104 of 2015, and a constitutional petition must be reserved for purely constitutional matters

Reasoning

An appeal against the subordinate court's decision was pending and undetermined. Most issues raised in the petition related to the merits of that decision and would be resolved on appeal. Even absent the appeal, the court would decline jurisdiction because the appeal procedure was appropriate. Relying on Harrikissoon and Alphonse Mwangemi Munga, the court held constitutional petitions should not be used where statutory processes suffice.

p. 2

Legal principles established

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  • A petition must be supported by a supporting affidavit; without one the petition is fatally defective and liable to be struck out.
  • Constitutional petitions should not be used where adequate statutory procedures, such as an appeal, exist to resolve the dispute.

Court orders

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  1. 1.The petition is struck out with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Harrikissoon Vs. Attorney-General Of Trinidad And Tobago
    [1980] A.C. 202
  • Alphonse Mwangemi Munga & 10 Others V African Safari Club Limited
    [2008] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 27, 40 and 159 invoked by the petitioner (specific jurisdictional provision of the court not stated in the judgment)

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 Kigen Rotich v Stella Chepkogei Mclean & 3 others [2018] KEELC 1375 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1375/eng@2018-09-26

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