Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2019] KEELC 3706 (KLR)

Japhet Kinyua Naaman (suing as the Legal representative to the Estate of Naaman M’Tuera alias Norman M’Tuera, deceased) v Silas Kimanthi & 3 others [2019] KEELC 3706 (KLR)

Environment and Land Court
8 April 2019
3,414 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The court dismissed a family's bid to recover land sold by their late father decades ago, because they couldn't prove any constitutional right was violated.

What this practically means

#

Executive summary

#
The Petitioner, as legal representative of the estate of Naaman M'Tuera (who died on 20 August 2002), petitioned alleging that the 1st to 3rd Respondents colluded after the deceased's death to alienate the original parcel No. 1123 Antuamburi Adjudication Section (said to exceed 150 acres) into parcels 1123, 1657 and 3045, transferring them to the 1st and 2nd Respondents without consent, in breach of Articles 40 and 47 of the Constitution. He sought declarations, rectification of land records and retransfer to the estate. The Respondents maintained that the deceased himself sold 50 acres in 1973 and 30 acres in 1980 to the 1st Respondent to service an AFC loan, school fees and medicare; that the disputes were arbitrated before the District Officer and the DLASO and dismissed; and that the petition failed the pleading threshold for constitutional violations. The court found the DLASO's account of how the parcels changed hands believable and unchallenged, held that the transactions occurred during the deceased's lifetime and that no constitutional right existing in 1973 or 1980 was identified or breached, that the burden of proof lay on the Petitioner and was not discharged, and that the adjudication appeal mechanism was never exhausted. The petition was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether a constitutional right existed in 1973/1980 that was breached by the alienation of the suit land

Holding

No. The transactions took place during the deceased's lifetime and no constitutional right was identified as existing then or breached continuously

Reasoning

The court found on affidavit evidence, including arbitration proceedings before the District Officer, that the deceased himself sold 80 acres to the 1st Respondent in 1973 and 1980 for value, and his wives confirmed knowledge of the sales. The Petitioner failed to identify any constitutional right existing in 1973 and 1980 that was breached. The current Constitution does not apply retrospectively to those transactions.

p. 4
02

Whether the petition met the pleading threshold for a constitutional violation

Holding

No; it fell short of the Annarita Karimi Njeru and Mumo Matemu threshold

Reasoning

Relying on the cited authorities, the court held that a petitioner must demonstrate in the pleadings the rights violated, the provisions infringed and the manner of infringement. The Petitioner's claim that the estate's rights under Articles 40 and 47 were infringed was not supported by evidence identifying any right breached, and the burden of proof rested on the Petitioner and could not be shifted to the Respondents.

p. 4
03

Whether the DLASO's account of how the parcels changed hands was credible

Holding

Yes; his evidence was believable and unchallenged

Reasoning

The Demarcation Officer/DLASO swore that parcel 1123 was gathered by Naaman with 88.73 acres, that 50 acres were transferred in 1973 and 30 acres in 1980 to the 1st Respondent, leaving the estate a reduced parcel. This evidence was consistent with the 1st and 2nd Respondents' evidence and with the arbitration proceedings, and the Petitioner did not challenge it.

p. 4
04

Whether the claim was barred by failure to exhaust adjudication remedies and by prior arbitration outcomes

Holding

Yes; the complaint had been arbitrated and dismissed, and no appeal against the DLASO's decision was filed

Reasoning

The dispute over the sales had been arbitrated by the District Officer, Tigania, who dismissed the sons' complaint after the deceased confirmed the sales. A subsequent objection before the DLASO was also dismissed. The court held that the adjudication process is central to resolving such disputes and found no evidence that the Petitioner exhausted the appeal mechanism against the DLASO's decision.

p. 4

Legal principles established

#
  • A petitioner must plead and demonstrate the specific constitutional right violated, with a reasonable degree of precision, and the provisions infringed
  • The burden of proving infringement of constitutional rights rests on the petitioner and cannot be shifted to the respondents
  • The land adjudication process is central to resolving disputes arising from demarcation, consolidation and registration, and parties must exhaust its appeal mechanisms
  • A constitutional petition does not apply retrospectively to transactions predating the current Constitution where no right existing under the old Constitution is identified

Court orders

#
  1. 1.The petition is dismissed with costs payable by the Petitioner
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging violation of Articles 40 and 47 (Environment and Land Court jurisdiction implied; not expressly cited)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Japhet Kinyua Naaman (suing as the Legal representative to the Estate of Naaman M’Tuera alias Norman M’Tuera, deceased) v Silas Kimanthi & 3 others [2019] KEELC 3706 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3706/eng@2019-04-08

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