Lawrence Njeru Munyi & 10 others v Musa Njau Mithuro & 2 others [2019] KEELC 4020 (KLR)
The bottom line
#An Embu court dismissed landowners' bid to block execution of a 2017 decree, ruling a constitutional petition cannot replace ordinary civil remedies.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners established a prima facie case for interlocutory relief
No prima facie case was established; the fact that their father died before conclusion of the proceedings and their belief that the decree was statute-barred did not raise constitutional issues, and their professed ignorance of decades-long litigation was not credible
The court examined the material before it and found that the dispute between the deceased father and the 1st Respondent had been litigated since the 1980s, including a Tribunal award adopted as a decree and a High Court appeal dismissed in 1991 during the deceased's lifetime. The Petitioners could not credibly claim ignorance. Their complaints - death of the deceased before proceedings concluded and a statute-barred decree - were not constitutional issues capable of founding a petition.
Whether constitutional petition proceedings could substitute for ordinary civil remedies
No; the Constitution is not a general substitute for normal procedures, and a claimable infringement under substantive law should be pursued under that law
Relying on Nyamu J in Kenya Bus Service Ltd & 2 Others v Attorney General, which adopted the Trinidad and Tobago decision in Re-Application by Bahader and Harrikson v Attorney General of Trinidad and Tobago, the court held that where infringements of rights can ground a claim under substantive law, the claimant must bring the claim under that law and not under the Constitution.
Whether the court should exercise its discretion in favour of interim orders despite non-disclosure
The court declined to grant interim orders because the Petitioners had concealed prior unsuccessful applications, including Embu Misc ELC Application No. 21 of 2017 dismissed on 19th July 2018 and Nyeri Civil Appeal No. 96 of 2012
The court discovered that the same Petitioners had previously sought stay of execution of the Chief Magistrate's orders from this very court, which was dismissed with no order as to costs on 19th July 2018, and had also unsuccessfully challenged the execution and cancellation of their titles before the Court of Appeal in Nyeri Civil Appeal No. 96 of 2012. This non-disclosure of material facts disentitled them to discretionary relief.
Legal principles established
#- Not every alleged breach of a civil, procedural or constitutional rule raises a constitutional issue; where a claim can be founded under substantive law, that is the proper course rather than a constitutional petition
- An applicant for interlocutory relief must make full and faithful disclosure of all material facts, including prior related applications
Court orders
#- 1.The Petitioners' notice of motion dated 21st September 2018 was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Articles 2(1), (4), 19(2), 21(1), 22(1), 23(1), (3), 27, 28, 40, 159(2), 162(2)(b) and 165(3)(b) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Njeru Munyi & 10 others v Musa Njau Mithuro & 2 others [2019] KEELC 4020 (KLR)", Case Analysis (2019). Petition filed 21st September 2018, Embu (Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4020/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.