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ELCDismissedPetition dated 15th April 2015 (Mombasa ELC)· [2018] KEELC 4357 (KLR)

Stephen M. K. Mbinu & 267 others v Chunky Limited & 3 others [2018] KEELC 4357 (KLR)

Environment and Land Court
26 February 2018
CYC. Yano
3,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Villagers lost their land rights case because their court petition was too vague about which rights were violated and on which specific parcels.

What this practically means

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Executive summary

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The Petitioners, describing themselves as ancestral residents of Chongongwe village, petitioned the Environment and Land Court at Mombasa alleging that they occupied LR Nos 909, 910, 913 and 1042 of Section VI Mainland North, that individual titleholders including the 1st Respondent had been issued titles over land reserved for indigenous occupants, and that they faced threatened violent eviction. They sought declarations of constitutional violation under Articles 2(5), 25, 28, 43(1)(b) and 47(1), conservatory orders, declarations of proprietary rights and title issuance, and damages. The 1st Respondent admitted owning only LR No. 909, alleged the Petitioners were trespassers and professional squatters, and raised a Preliminary Objection on jurisdiction and want of precise pleading. The court, per C. Yano J, first held that under Article 162(2)(b), Section 13(3) of the Environment and Land Court Act and Article 165(5)(b), the Court has jurisdiction over constitutional claims concerning environment and land, disallowing the first ground. On the second ground, applying Anarita Karimi Njeru as reaffirmed in Mumo Matemu and Ledidi ole Tauta, the court found the Petition too general: it claimed several parcels without demarcation or specific location, the 1st Respondent owned only one parcel, other owners were not joined, and the National Land Commission was not a party though declarations were sought against it. Ground 2 of the objection was upheld and the Petition was dismissed with costs to the 1st Respondent on 26th February 2018.

Key legal issues

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01

Jurisdiction of the ELC over constitutional petitions concerning land rights

Holding

The ELC has jurisdiction to hear constitutional claims of rights violations relating to environment and land under Section 13(3) of the ELC Act and Article 165(5)(b)

Reasoning

The court traced jurisdiction to Article 162(2)(b) and Section 13 of the Environment and Land Court Act, which empowers the Court to hear and determine applications for redress of denial, violation or infringement of rights relating to environment and land. Ground 1 of the objection therefore failed.

p. 4
02

Precision in pleading constitutional violations (Anarita Karimi Njeru standard)

Holding

The Petition failed to plead with reasonable precision the specific rights infringed, the manner of infringement, and the specific property, and was dismissed

Reasoning

Although the Petition cited constitutional Articles, the allegations were general: the claim spanned several parcels of land without demarcation or specific location, the 1st Respondent owned only one parcel, owners of other parcels were not joined, and the NLC against whom declarations were sought was not a party. The Petition did not meet the Anarita Karimi Njeru threshold as elaborated in Mumo Matemu.

p. 5

Legal principles established

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  • A constitutional petitioner must set out with reasonable degree of precision the provision said to be infringed and the manner of infringement
  • The ELC has jurisdiction over constitutional claims concerning rights relating to environment and land
  • A court without jurisdiction must decline to proceed

Court orders

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  1. 1.Ground 1 of the Preliminary Objection (lack of jurisdiction) disallowed
  2. 2.Ground 2 of the 1st Respondent's Preliminary Objection upheld
  3. 3.Petition dismissed
  4. 4.Costs of the Petition awarded to the 1st Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 2(5), 2(6), 19, 20, 21, 22(2)(a), 3(d), 23(1), (3), 25, 28, 40, 42, 43(1)(b), 47(1), 69, 70, 162(2)(b), 165(3)(a),(d),(i)(ii), 165(5)(b)
  • Environment and Land Court ActSections 4, 13(2), 13(3), 13(7)
  • Protection of Fundamental Rights and Freedom of the Individual Practice and Procedure RulesRules 11(c) and 12
  • Universal Declaration of Human RightsArticle 25

Cases cited (7)

  • Anarita Karimi Njeru –v- Rep
    (1976-1980) KLR 1272
  • Ledidi ole Tauta & others –v- Attorney General & 2 Others
    (2015) eKLR
  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR
  • Wilson Mutegi Nyaga & 2 Others –vs- County Public Service Board of Kitui
    (2016) eKLR
  • Ernest Kevin Luchidio –vs- Attorney General & 2 others
    (2015) eKLR
  • Daniel N. Mugendi –vs- Kenyatta University and 3 others
    (2013) eKLR
  • Owners of Motor Vessel "Lilian S" v- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (No. 19 of 2011); Article 165(5)(b)

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, "Stephen M. K. Mbinu & 267 others v Chunky Limited & 3 others [2018] KEELC 4357 (KLR)", Case Analysis (2018). Petition dated 15th April 2015 (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4357/eng@2018-02-26

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