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)
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
#Key legal issues
#Whether a constitutional right existed in 1973/1980 that was breached by the alienation of the suit land
No. The transactions took place during the deceased's lifetime and no constitutional right was identified as existing then or breached continuously
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.
Whether the petition met the pleading threshold for a constitutional violation
No; it fell short of the Annarita Karimi Njeru and Mumo Matemu threshold
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.
Whether the DLASO's account of how the parcels changed hands was credible
Yes; his evidence was believable and unchallenged
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.
Whether the claim was barred by failure to exhaust adjudication remedies and by prior arbitration outcomes
Yes; the complaint had been arbitrated and dismissed, and no appeal against the DLASO's decision was filed
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.
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.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.