Kenafric Properties Limited v Ruaraka Constituency Development Fund Committee & 2 others [2018] KEELC 4639 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's constitutional petition because it had no solid proof of encroachment and skipped the statutory dispute process first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner proved violation of its Article 40 right to property
The Petitioner failed to demonstrate that the Respondents invaded the Suit Property or attempted to construct the Ruaraka Constituency Development Office on it; the photographs did not evidence the alleged invasion
The Petitioner relied on photographs showing an open space partially fenced with iron sheets, but the court found it difficult to tell who erected the fence and that the photographs did not show the invasion alleged. The 2nd Respondent denied any role in the alleged invasion, and the alleged construction project had not even been submitted for approval under the statutory procedure.
Whether the 2nd Respondent was properly joined as a party
The 2nd Respondent was wrongly joined as it does not play a direct role in the implementation of constituency projects
The 2nd Respondent's role is limited to allocation and disbursement of funds, while implementation of projects rests with the constituency-level Committee. The court agreed with the principle in Abdul Waheed Sheikh that a party must be necessary for the effectual adjudication of all questions before it can be joined.
Whether the petition was premature for failure to exhaust the statutory dispute resolution mechanism
The Petitioner ought to have pursued the dispute resolution mechanism prescribed under the Constituency Development Act and the National Government Constituencies Development Fund Act before filing the petition
Both statutes contain a dispute resolution mechanism which the Petitioner did not pursue. The proposed construction had not undergone the submission and approval procedure under Section 27 of the National Government Constituencies Development Act, reinforcing the premature nature of the petition.
Legal principles established
#- A party should be joined in legal proceedings only where its presence is necessary to enable the court effectually and completely adjudicate all questions in the suit
- Where a statute prescribes a dispute resolution mechanism, a party must pursue it before filing a constitutional petition
Court orders
#- 1.The petition dated 12/10/2016 is dismissed
- 2.Costs of the petition awarded to the 2nd Respondent
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Constitution (petition alleging violation of Article 40 right to property relating to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenafric Properties Limited v Ruaraka Constituency Development Fund Committee & 2 others [2018] KEELC 4639 (KLR)", Case Analysis (2018). ELC Petition No. 1261 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4639/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.