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ELCDismissedELC Petition No. 1261 of 2016· [2018] KEELC 4639 (KLR)

Kenafric Properties Limited v Ruaraka Constituency Development Fund Committee & 2 others [2018] KEELC 4639 (KLR)

Environment and Land Court at Nairobi
25 January 2018
1,211 words in judgment
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The bottom line

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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

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Executive summary

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Kenafric Properties Limited, the registered owner of L.R. No. 336/109 in Baba Dogo, Nairobi, petitioned the Environment and Land Court alleging that on or about 16 March 2015 workers of the Ruaraka Constituency Development Fund Committee, led by the area MP, Hon Tom J. Kajwang, encroached on the suit property with intent to construct the Ruaraka CDF offices on private land never compulsorily acquired. The Petitioner sought a conservatory order restraining the encroachment, declarations that the encroachment violated its Article 40 right to property, and damages. The 2nd Respondent, the Constituency Development Fund Board (renamed the National Government Constituencies Development Fund Board under the 2015 Act), opposed the petition through its Corporation Secretary, Simon Ndweka, contending that its role is limited to allocation and disbursement of funds, not project implementation; that the proposed project had not been submitted for approval under Section 27 of the Act; and that the Petitioner prematurely bypassed the statutory dispute resolution mechanism. The 1st and 3rd Respondents did not file responses despite service. The court framed two questions: whether the Petitioner proved violation of its Article 40 rights, and if so, whether the orders sought should issue. It held the photographs did not evidence the alleged invasion, agreed the 2nd Respondent was wrongly joined since it plays no direct implementation role, and found the petition premature for failure to exhaust the statutory dispute resolution mechanism. The petition dated 12/10/2016 was dismissed with costs to the 2nd Respondent.

Key legal issues

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01

Whether the Petitioner proved violation of its Article 40 right to property

Holding

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

Reasoning

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.

p. 3
02

Whether the 2nd Respondent was properly joined as a party

Holding

The 2nd Respondent was wrongly joined as it does not play a direct role in the implementation of constituency projects

Reasoning

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.

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03

Whether the petition was premature for failure to exhaust the statutory dispute resolution mechanism

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The petition dated 12/10/2016 is dismissed
  2. 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

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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, "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.