Mary Jemutai Tonje v Raphael Chebii & 5 others [2018] KEELC 3562 (KLR)
The bottom line
#Owning land is not enough: a Kenyan court dismissed a landowner's constitutional petition because she failed to clearly plead how her rights were violated.
What this practically means
#Executive summary
#Key legal issues
#Whether encroachment on a petitioner's land violates the right to inherent dignity under Article 28
No violation of Article 28 was established since the petitioner did not live on the land, was not evicted, and no humiliating treatment of her person was demonstrated
The court held that dignity is inherent in a person and cannot depend on external factors such as ownership of land or its invasion without a nexus being drawn between those factors and acts humiliating the petitioner. The petitioner did not live on the land, no eviction was alleged, no denial of residence or occupation claimed and no improper physical treatment demonstrated.
Whether Article 40(2)(a) and (b) was violated
Article 40(2)(a) and (b) contains no substantive rights capable of violation in the circumstances; it merely restrains Parliament from enacting laws permitting arbitrary deprivation of property
The court reasoned that the provision injuncts Parliament rather than guaranteeing rights to land. The petitioner did not allege that Parliament had enacted any law violating Article 40(2), or that such a law adversely affected her rights and should be nullified. No rights under those provisions were shown to be violated.
Whether Article 47(1) (fair administrative action) was violated
The petitioner did not allege with specificity which authority failed, refused or neglected to act on her grievance so as to amount to a violation of Article 47
The court examined the petitioner's affidavit and found the relevant paragraphs did not allege with specificity who refused, failed or neglected to act on her grievances. Specificity in constitutional petitions, as required by Anarita Karimi Njeru, had not been met; the burden of setting out and proving facts falls squarely on the petitioner.
Legal principles established
#- Proof of ownership of property does not necessarily lead to the conclusion that an owner's constitutional rights have been violated
- A petitioner must establish by way of clear pleading the rights relied on, the constitutional provisions from which they derive, and the manner of violation
- Article 40(2)(a) and (b) does not create a substantive guarantee of rights to land but injuncts Parliament from enacting laws permitting arbitrary deprivation of property
- Where a petitioner fails to clearly state the facts relied on and demonstrate a nexus between those facts and constitutional provisions, the petition may fail
Court orders
#- 1.The petition dated 27/6/2014 is dismissed
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Articles 22, 23 and 28, 40, 47 of the Constitution of Kenya, 2010 - enforcement of Bill of Rights and protection of property rights
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jacob Nakunyu & 121 others v District Land Adjudication & Settlement Officer Imenti Central District & another; Thiakunu Mwirabua & 1833 othersn(Interested Parties) [2022] KEELC 2283 (KLR)[2022] KEELC 2283 (KLR)19 Jan 2022applied
- Johnson Mithika M’ikiao v Rose Mukiri Thaitumu & 2 others [2018] KEELC 2003 (KLR)[2018] KEELC 2003 (KLR)29 Aug 2018applied
- Wetangula & another v Kombo & 5 others[2015] KESC 12 (KLR)17 Mar 2015
Cite this brief
#Cite this brief
Caselaw, "Mary Jemutai Tonje v Raphael Chebii & 5 others [2018] KEELC 3562 (KLR)", Case Analysis (2018). Petition No. 9 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3562/eng@2018-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.