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ELCDismissedConstitutional Petition dated 27th March 2018· [2019] KEELC 2293 (KLR)

Samson Muriungi Mwirebua v Silas Kimathi Mutonga & another [2019] KEELC 2293 (KLR)

Environment and Land Court
17 July 2019
4,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a bid to strike down Section 8(1) of the Land Control Act, confirming land buyers must follow statutory channels.

What this practically means

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Executive summary

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The petitioner sought a declaration that section 8(1) of the Land Control Act is unconstitutional, specific performance of an agreement for sale of land parcel Nkuene/L-Mikumbune/1821 dated 29th November 2014, certiorari to quash a caution lodged by the 2nd respondent, mandamus compelling the Land Control Board to issue consent, extension of time for the consent application, an injunction, and costs. He claimed he had bought the land, taken possession and received the original title, but the transfer failed for want of land control board consent allegedly frustrated by the respondents' caution. The 1st respondent denied the sale, asserting he had only pledged the title as security for a loan from a shylock; the 2nd respondent said he had bought a portion of the property and lodged the caution to protect his interests. Framing four issues, the court held that failure to enjoin the Attorney General was fatal, since the petition impugned the operations of public entities (the Land Control Board and the Land Registrar) which the AG ordinarily represents, distinguishing Council of Governors v Senate. The petition also failed the Anarita Karimi Njeru threshold, the petitioner generally citing constitutional provisions without pleading the manner of infringement; the underlying dispute was an ordinary contractual/land ownership matter, and removal of a caution is not a constitutional issue. On constitutionality, the court applied the presumption of constitutionality and the purpose-and-effect test, finding section 8(1) serves legitimate public policy and applies to any party; the petitioner had neither applied for consent, sought extension, nor exhausted the statutory appeal mechanism. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Whether failure to enjoin the Attorney General is fatal

Holding

It is fatal where the petition challenges the operations of public entities such as the Land Control Board and the Land Registrar, which are ordinarily represented by the Attorney General; natural justice requires their involvement

Reasoning

The court distinguished Council of Governors v Senate, where notice to the AG was a mere procedural step because the senate itself was the state organ being sued. Here the respondents were private individuals but the petition impugned the operations of the Land Control Board and the Land Registrar, statutory bodies ordinarily represented by the Attorney General. Failure to enjoin the AG denied those entities a hearing contrary to Article 50.

p. 4
02

Whether the petition meets the constitutional threshold

Holding

It does not; the petitioner generally cited constitutional provisions without pleading with precision how his rights were infringed, and the dispute is essentially a contractual/land ownership dispute

Reasoning

The court applied the Anarita Karimi Njeru standard as restated in Mumo Matemu. The petition revolved around ownership of the suit land and enforceability of a sale agreement, requiring evidence on formation and breach of contract. Removal of a caution under section 73 of the Land Registration Act is not a constitutional issue. The petition fell short of the Anarita threshold and could not stand.

p. 4
03

Whether section 8(1) of the Land Control Act is unconstitutional

Holding

It is not; the section applies to any party to a controlled transaction, is grounded on legitimate public policy, and the petitioner failed to discharge the onus of proving unconstitutionality

Reasoning

The court invoked the presumption of constitutionality (Ndyanabo; Pearlberg v Varty) and the Olum purpose-and-effect test. Relying on David Sironga Ole Tukai, it found the Land Control Act serves noble public policy on agricultural land. Section 8(1) permits any party to apply for consent or seek extension of time, so it does not advantage the seller. The petitioner never applied for consent or extension nor exhausted the statutory appeal mechanism.

p. 5
04

Whether the reliefs sought can be granted

Holding

None can be granted as the petition failed the constitutional threshold and lacks merit

Reasoning

All the prayers - declaration of invalidity, specific performance, certiorari, mandamus, extension of time and injunction - depended on the petition succeeding constitutionally. Having found the petition incompetent for non-joinder of the Attorney General and for failing the Anarita threshold, and the constitutional challenge on section 8(1) failing on the merits, the court dismissed the whole petition with costs to the respondents.

p. 5

Legal principles established

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  • A constitutional petition must state with reasonable precision the constitutional provisions infringed and the manner of infringement
  • All statutes are presumed constitutional until the contrary is proved
  • A litigant must not ignore statutory dispute-resolution mechanisms and rush to court under the guise of a constitutional petition

Court orders

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  1. 1.The instant Petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Land Control Actsection 6
  • Land Control Actsection 8(1)
  • Land Control Actsection 9
  • Land Registration Actsection 71
  • Land Registration Actsection 73
  • Government Proceedings Actsection 13A(1)
  • Constitution of Kenya, 2010Articles 12(1)(a), 19, 20, 21, 22, 23, 24, 27, 28, 29(d), 40, 47, 48, 50, 60, 61, 64 and 68

Cases cited (20)

  • Grace Wachuka Mano vs Francis Kamau Gatiba
    (2016) eKLR
  • Samuel Kirubi Njuki vs. Margaret Wangari Macharia
    (2014) eKLR
  • Githunguri Dairy farmers Cooperative Society Ltd v. Attorney General & 2 Others
    (2016) eKLR
  • Simeon Kioko Kitheka & 18 Others vs. County Government of Machakos & 2 Others
    (2018) eKLR
  • Council of Governors & 3 Others vs. Senate & 53 Others
    [2015] eKLR
  • Raila Odinga & Another vs. Independent electoral and Boundaries Commission & 2 Others
    Petition 1 of 2017 SCOK
  • Registrar of trade unions vs. Nicky Njuguna & 4 Others
    (2012) eKLR
  • David Sironga Ole Tukai vs. Francis Arap Muge and two others
    (2014) eKLR; C.A Nairobi C.A No.76 of 2014
  • Jeremiah Muku vs. Methodist Church of Kenya Registered & Another
    Meru H.C.C.C No.80 of 2005
  • Chokoling vs. AG of Trinidad & Tobago
    (1981) U.L.R. 108
  • Maharai vs. AG of Trinidad & Tobago (NO.2)
    1979 A.C 385
  • Peter Waweru Waitita vs. Cyry J.Karanja
    (2007) eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu v Trusted society of human rights alliance & 5 others
    [2013] eKLR
  • Manase Guyo & 260 Others vs. Kenya forest services & Another
    H.C.C. Petition no. 22 of 2014, Mombasa
  • Lyomoki and Others vs. Attorney-General
    [2005] E.A. 127
  • Ndyanabo vs. Attorney General
    [2001] EA 495
  • Pearlberg vs. Varty
    [1972] 1 WLR 534
  • Olum & another v Attorney General
    [2002] 2 E.A
  • Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others
    [2011] eKLR
Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya, 2010 (petition for enforcement of Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Muriungi Mwirebua v Silas Kimathi Mutonga & another [2019] KEELC 2293 (KLR)", Case Analysis (2019). Constitutional Petition dated 27th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2293/eng@2019-07-17

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