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ELCStruck OutPetition dated 23rd March 2017 (High Court of Kenya, Nyahururu, transferred to Environment and Land Court)· [2018] KEELC 2194 (KLR)

Thiririka Self Help Group v Nyandarua County Assembly & another [2018] KEELC 2194 (KLR)

Environment and Land Court
30 July 2018
3,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out the petition because it never clearly stated which constitutional rights were violated and how.

What this practically means

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Executive summary

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The Petitioners, a registered self-help group, sought a declaration that their title to parcel Nyandarua/South Kinangop/563 was valid and duly registered and an order restraining the Respondents from interfering with their ownership. They complained that the 1st Respondent (the County Assembly) had been summoning them and holding deliberations over the land, interfering with their enjoyment of what they claimed was private land. They also raised a preliminary objection to the 1st Respondent's legal representation. The Respondents countered that the land was public land containing a dam and public amenities, that the title was fraudulently and unprocedurally acquired, that the Assembly was exercising its oversight mandate, and that the Petition was vague and a shortcut that failed to disclose any constitutional violation. The court framed three issues. On the first, it dismissed the preliminary objection, holding that Section 43 of the County Government Act is permissive rather than mandatory and that counsel was properly on record, the objection being a mere technicality. On the second, applying the Anarita Karimi Njeru principle as restated in Mumo Matemu and Stephen Njuguna, the court held that a petition invoking the Bill of Rights must plead with reasonable precision the specific rights infringed and the manner of infringement; the Petition disclosed none. Accordingly, the court struck out the Petition with costs to the Respondents, leaving the validity of the title to be determined in an appropriately framed suit.

Key legal issues

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01

Capacity of counsel to represent the 1st Respondent

Holding

The Preliminary Objection to the 1st Respondent's legal representation fails; Section 43 of the County Government Act is permissive and the counsel was properly on record

Reasoning

Section 43 provides that a county government 'may' request the Attorney-General to represent it, which is not mandatory, leaving room for representation of its own choice. The counsel's letter of appointment expressly tasked him with representing the County Assembly in court. The objection is a mere technicality which cannot prevail over substantive justice and public interest, and is dismissed.

p. 6
02

Whether the Petition disclosed a constitutional violation

Holding

The Petition is fatally defective: it failed to plead with reasonable precision the constitutional rights infringed and the manner of infringement, and was struck out

Reasoning

Relying on the Anarita Karimi Njeru principle as restated in Mumo Matemu and Stephen Njuguna, the court held that a party invoking Articles 22 and 23 must identify the specific provisions of the Bill of Rights infringed and show how. From the title and heading of the Petition no right infringed was disclosed, and it could not be ascertained what rights were contravened and in what way.

p. 7
03

Entitlement to reliefs sought

Holding

Having struck out the Petition, the Petitioners were not entitled to the declaratory reliefs sought; the validity of the title remains open to challenge

Reasoning

Both Respondents contended the title was fraudulently and unprocedurally acquired over alleged public land, and the 2nd Respondent argued that a declaration of title validity could only be sought by filing a suit, not a constitutional petition that would lock out parties challenging the title. The Petition having been struck out, no relief issued.

p. 7

Legal principles established

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  • A petition invoking the Bill of Rights must specifically plead the rights infringed, set out particulars and facts demonstrating the contravention
  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
  • Section 43 of the County Government Act is permissive, not mandatory, leaving a county government free to choose its legal representation

Court orders

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  1. 1.The Preliminary Objection against the 1st Respondent's legal representation is dismissed
  2. 2.The Petition is struck out
  3. 3.Costs of the Petition to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 156(4)
  • Constitution of KenyaArticles 22 and 23
  • Constitution of KenyaChapter Four (Articles 26 to 51)
  • Constitution of KenyaArticles 61, 62, 64, 67, 176
  • County Government ActSections 8, 9 and 43
  • Advocates ActSection 9
  • Land ActSection 2
  • Land Registration ActSections 24, 25 and 26
  • Survey ActCap. 299

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Diocese of Eldoret Trustees (registered) vs. National Land Commission and 2 others
    [2015] eKLR
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Stephen Njuguna & others vs. Hon. Lewis Nguyai & Others
    H.C Petition No. 118 of 2011 (UR)
  • Anarita K. Njeru v Republic
    [1979] eKLR
Jurisdiction invoked
Constitution of Kenya, Articles 22 and 23 (enforcement of Bill of Rights); land and environment jurisdiction of the Environment and Land Court

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, "Thiririka Self Help Group v Nyandarua County Assembly & another [2018] KEELC 2194 (KLR)", Case Analysis (2018). Petition dated 23rd March 2017 (High Court of Kenya, Nyahururu, transferred to Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2194/eng@2018-07-30

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