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ELCDismissedPetition No. 7 of 2016· [2018] KEELC 1812 (KLR)

Edward Karanja Chogo & 2 others v County Government of Kakamega [2018] KEELC 1812 (KLR)

Environment and Land Court
18 September 2018
NMN.A. Matheka
2,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a land rights petition because boundary facts were too unclear, advising the owners to file an ordinary civil suit instead.

What this practically means

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Executive summary

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The three petitioners moved the Environment and Land Court at Kakamega by Notice of Motion dated 11 May 2016, alleging contravention of fundamental rights under Articles 27, 28, 40, 47, 48 and 50 of the Constitution, and sought conservatory orders restraining the County Government of Kakamega from entering their land parcels Butsotso/Shikoti/18098 and Butsotso/Shikoti/13652 or constructing a public road thereon. The respondent filed grounds of opposition (but no replying affidavit) and a joint survey report dated 15 December 2017. The respondent argued the petition raised no constitutional issue, being a private-law boundary and trespass dispute couched as a constitutional claim to avoid the Government Proceedings Act, and relied on the Anarita Karimi Njeru precision requirement and authority confining constitutional jurisdiction to clear constitutional matters. The court held the respondent was entitled to oppose on the grounds of opposition, Article 159(2)(d) requiring justice without undue regard to technicalities. It acknowledged the petitioners' property rights under Article 40 and the respondent's duty under Section 112 of the Land Act to conduct an inquiry, but found the survey report disclosed map-ground anomalies, an unresolved boundary dispute requiring the Land Registrar, and damage that could not be accurately determined. The court therefore found it impossible to establish in a constitutional petition the provision infringed and the manner of infringement, and advised the petitioners to revert to a civil claim and follow the report's recommendations. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the respondent could oppose the petition without a replying affidavit

Holding

Yes; grounds of opposition sufficed and the court considered the matter on the merits.

Reasoning

The proceedings are sui generis under the Mutunga Rules and not governed by Civil Procedure Rules. Rule 16 is not mandatory ('may hear and determine'), leaving the court discretion to consider all facts on record, including the two survey reports. Article 159(2)(d) requires justice without undue regard to technicalities, so the respondent's grounds of opposition entitled it to challenge the petition.

p. 2
02

Whether the petition satisfied the Anarita Karimi Njeru precision standard and disclosed a genuine constitutional question

Holding

No; the petition failed to establish with precision the constitutional infringements alleged, and the dispute is a private-law boundary/damage claim.

Reasoning

The court relied on the joint survey report of 15 December 2017, which found map-ground non-conformity, a boundary dispute requiring the Land Registrar, and damage that could not be determined accurately. With facts so uncertain, the court could not identify the provision infringed and the manner of infringement; the matter was civil in nature and ought to proceed by way of a civil suit.

p. 3
03

Whether the petitioners' property and fair administrative action rights under Articles 40 and 47 were violated

Holding

The rights were acknowledged in principle but no violation was established on the facts.

Reasoning

The court affirmed that every person has a right to own property and not to be arbitrarily deprived of it, and that the respondent ought to have conducted an inquiry under Section 112 of the Land Act. However, the survey report's uncertainties meant the alleged violations could not be ascertained in a constitutional petition, so the petition failed.

p. 3

Legal principles established

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  • A constitutional petition is meant for clear constitutional matters where facts can be ascertained; where further facts are needed, the petitioner must revert to a civil claim
  • A party alleging violation of fundamental rights and freedoms must plead with particularity, identifying the provision infringed and the manner of infringement
  • A respondent who has filed grounds of opposition is entitled to oppose a petition notwithstanding the absence of a replying affidavit, applying Article 159(2)(d)

Court orders

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  1. 1.The petition is dismissed with no orders as to costs
  2. 2.The petitioners are advised to follow the recommendations of the survey report in order to determine the boundaries and actual positions of their parcels of land

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 2, 3, 10, 19, 20, 21(1)&(3), 27(1)&(2), 28, 40(1), 40(2), 40(3), 40(6), 43(1)(a)(b)(c), 47(1)&(2), 48, 50(1), 60(1B), 64, 73, 159(2)(d), 160, 162(2)(b), 165, 174(A), 259, 260
  • Land ActSections 107, 108, 111, 112, 113, 114, 115, 126, 128, 146, 147, 148, 150
  • Land Registration ActSections 24(a), 25, 26, 101
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 16, 23, 24
  • Government Proceedings ActSection 16
  • Mining ActRelief by way of compensation (as referenced in quoted passage)
  • Land and Environment ActSection 13

Cases cited (7)

  • Kenya Guards & Allied Workers Union vs Security Guards Services and 38 Others and Another (IP)
    H.C. Misc. 1159 of 2003
  • Kenya Bus Service Ltd & 2 others v Attorney General & Another
    Misc Civil Suit No. 413 of 2005
  • David Ramogi & 4 Others vs C.S Ministry of Energy & Petroleum and 7 Others
    [2017] eKLR
  • Rodgers Muema Nzioka v AG
  • Everlyn College of Design vs Director of Children's Department & AG
    Constitution Petition No. 228 of 2013
  • Republic vs National Police Service Commission
    Judicial Review Miscellaneous Application No. 36 of 2016
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) eKLR 1272
Jurisdiction invoked
Articles 165 and 162(2)(b) of the Constitution of Kenya 2010 (jurisdiction of the Environment and Land Court) and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Edward Karanja Chogo & 2 others v County Government of Kakamega [2018] KEELC 1812 (KLR)", Case Analysis (2018). Petition No. 7 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1812/eng@2018-09-18

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