Republic v Cabinet Secretary Minister of Lands and Housing & another Ex Parte Johnstone Mutisya Kiamba; Barthlomew Nguthi Makau (Interested Party) [2019] KEELC 4777 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can bring a constitutional petition over land without needing judicial review leave or meeting a six-month deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether leave under Order 53 and the six-month limitation under Order 53 Rule 2/Law Reform Act Section 9 apply to a petition seeking judicial review orders under Article 23
They do not apply; no leave or limitation period governs constitutional petitions under Articles 22 and 258
The court adopted the holding in Kiluwa Limited that Article 23(3) merely prescribes reliefs including judicial review orders available in a constitutional petition, and that no statutory limitation period applies to petitions under Article 22 or 258. The court reasoned that a statute and rules made thereunder cannot override the Constitution, so the Order 53 and Law Reform Act objections failed.
Whether the Environment and Land Court has jurisdiction to entertain a petition alleging violation of rights relating to land
Yes, the court is vested with jurisdiction
The court noted that while the High Court has jurisdiction to enforce the Bill of Rights under Article 23, that jurisdiction is limited by Article 165(5)(b), which excludes matters falling within the jurisdiction of courts contemplated in Article 162(2). The Environment and Land Court, established under Article 162(2)(b), thus has jurisdiction over land-related rights disputes.
Whether the limited grant of letters of administration ad litem confined to filing a suit for damages in respect of death conferred locus standi to file a land petition
The objection failed as part of the dismissed preliminary objections
The Interested Party argued that the limited grant in Makueni High Court P&A No. 11 of 2018 was limited only to filing suit for damages in respect of the deceased's death and therefore did not confer locus standi for a land petition under Section 54 of the Law of Succession Act. The Applicant countered that the grant allowed him to file suit, and that Articles 22 and 258 had expanded standing. The court dismissed the objection without separately analysing this ground.
Legal principles established
#- Constitutional petitions under Articles 22 and 258 are not subject to any statutory period of limitation under the Limitation of Actions Act or the Law Reform Act; a statute and rules made thereunder cannot override the Constitution
- The High Court's jurisdiction to uphold and enforce the Bill of Rights is limited by Article 165(5)(b), which excludes matters falling within the jurisdiction of courts contemplated under Article 162(2) - hence the Environment and Land Court is vested with jurisdiction over such matters
Court orders
#- 1.Dismissal of the 2nd Respondent's notice of preliminary objection
- 2.Dismissal of the Interested Party's notice of preliminary objection
- 3.Costs of both preliminary objections awarded to the Petitioner/Applicant
- Jurisdiction invoked
- Articles 162(2)(b), 23, 47, 258 and 165 of the Constitution; Section 13(2) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary Minister of Lands and Housing & another Ex Parte Johnstone Mutisya Kiamba; Barthlomew Nguthi Makau (Interested Party) [2019] KEELC 4777 (KLR)", Case Analysis (2019). Not stated in the judgment (Makueni; petition under Articles 10, 22, 23, 40, 47 and 258 of the Constitution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4777/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.