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ELCStruck OutPetition dated 26th March 2019· [2019] KEELC 450 (KLR)

Joseph Muiru Kabira & another v Patrick Kirika Karanja & another [2019] KEELC 450 (KLR)

Environment and Land Court
26 November 2019
MOM.C. Oundo
2,829 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners filed a Petition dated 26th March 2019 seeking declaratory orders that a 12-acre parcel, LR Marmanet/Malewa/block 1/2720 (Muhotetu) in Nyahururu, vests absolutely in them as co-owners, and that the Respondents fraudulently and unconstitutionally transferred the land contrary to Article 40 of the Constitution, with further reliefs under Articles 27, 38 and 40. The Respondents filed a Preliminary Objection dated 8th April 2019 contending that the Petition raised no constitutional issues, that the dispute was a private law claim of fraud redressable under the Land Act, that the Constitution should not be used to determine private law issues, and that a substantially similar suit, Nakuru ELC No. 262 of 2012, was pending between the same parties. By consent, the objection was disposed of by written submissions. The court, M.C. Oundo J, restated the Mukisa Biscuits definition of a preliminary objection and framed two issues: whether constitutional rights had been infringed and whether the Petitioners were entitled to the orders sought. Analysing Article 40 clause by clause, the court found no allegation of denial of the right to own property, no arbitrary deprivation by legislation, and no State acquisition triggering Articles 40(3) and (4). Relying on the principle that the Constitution should be avoided where alternative remedies exist, the court held the suit was a disguised Petition based on alleged fraud, upheld the Preliminary Objection and struck out the Petition with costs to the Respondents.

Key legal issues

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01

Whether the Petition raised a constitutional issue warranting determination under Article 40

Holding

It did not; the dispute is a private law claim of fraud which must be proved on a balance of probabilities in an ordinary suit

Reasoning

The court analysed each limb of Article 40: there was no allegation that the Petitioners were denied the right to acquire or own property; no complaint of arbitrary deprivation by legislation under Article 40(2); and no State acquisition for public purpose or compensation under Article 40(3) and (4). The alleged fraud of private parties does not concern the status, powers and functions of an organ of State and raises no constitutional matter.

p. 4
02

Whether the Preliminary Objection met the Mukisa Biscuits threshold

Holding

Yes - despite contested facts on fraud, the court upheld the objection because the Petition disclosed no constitutional cause of action

Reasoning

The court restated the classic test from Mukisa Biscuits that a preliminary objection is a point of law pleaded or arising by clear implication which may dispose of the suit. Applying the principle that a constitutional petition must precisely allege infringement of specific constitutional provisions, the court found the Petition failed to plead any actual breach of Article 40 and struck it out.

p. 5

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Where a remedy is available under other legislation, a court will decline to determine a constitutional question
  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • The Constitution should not be invoked where a matter can be disposed of without recourse to it

Court orders

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  1. 1.Upheld the Preliminary Objection dated the 8th April 2019
  2. 2.Struck out the Petition dated the 26th March 2019
  3. 3.Costs of the Petition awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(4), 40, 63, 65, 159(2)(d) and (e), 10
  • Civil Procedure ActSection 3A
  • Land Act(referred to generically)

Cases cited (9)

  • Godfrey Paul Okutoyi v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association & another
    [2018] eKLR
  • Maggie Mwauki Mtalaki vs The Housing Finance Co. of Kenya
    [2015] eKLR
  • Anarita Karimi Njeru vs Republic (No. 1)
    [1979] KLR 154
  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA. 696
  • Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others
    [2002] 23 ILJ 81 (CC)
  • Bethwell Allan Omondi Okai vs TELKOM (K) LTD (Founder) and 9 Others
    [2913] eKLR
  • Speaker of National Assembly vs Njega Karume
  • John Harun Mwau vs Peter Gastrow & 3 Others
    [2014] eKLR
  • Leonard Jefwa Kalama & Another vs Consolidated Bank of Kenya Ltd. & 3 Others
    [2014] eKLR
Jurisdiction invoked
Article 40, Constitution of Kenya 2010 (jurisdiction over alleged breach of fundamental rights); Article 159(2)(d) and (e) referenced; Civil Procedure Act section 3A

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, "Joseph Muiru Kabira & another v Patrick Kirika Karanja & another [2019] KEELC 450 (KLR)", Case Analysis (2019). Petition dated 26th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/450/eng@2019-11-26

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