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ELCDismissedPetition dated 22nd March, 2018 (Embu)· [2020] KEELC 164 (KLR)

Francis Kimolo Kimatu & 58 others v Attorney General & 3 others; Purity Kanini Mugo & 52 others (Interested Parties) [2020] KEELC 164 (KLR)

Environment and Land Court
18 December 2020
3,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a constitutional petition challenging an old land case, ruling ordinary legal channels—not constitutional petitions—are the proper route.

What this practically means

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Executive summary

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The Petitioners, claiming occupation of Title Nos. Mbeti/Gachuriri/249 and 250 purchased from Muruga Clan in or about 1972, petitioned the Environment and Land Court seeking declarations that their failure to be joined as parties in Embu High Court Civil Case No. 97 of 2005 (Mutokaa Nthautho & 19 Others v Attorney General) and the ensuing Nyeri appeal violated their rights under Articles 27, 40 and 50 of the Constitution, rendering those proceedings null and void. The Attorney General raised a preliminary objection including lack of jurisdiction to sit in appeal over the Court of Appeal and res judicata; the 4th Respondent (Mbandi Clan chairman) and Interested Parties contended the Petitioners' relatives had participated in the earlier suits and that the petition was a back-door attempt after exhausting appeals. The court framed four issues: bona fide constitutional issues, proved violation, entitlement to reliefs, and costs. Applying the principle of avoidance and authority holding that the Constitution is not a substitute for ordinary statutory remedies, the court found no bona fide constitutional issues. It further held, following Elias Mwirigi Arimi, that an ELC cannot declare a judgment of a co-ordinate superior court unconstitutional as that would infringe Article 165(6). The Petitioners' claim of ignorance of the proceedings was disbelieved, and no deprivation of registered property was proved. The petition dated 22nd March, 2018 was dismissed in its entirety with costs to the Respondents and the Interested Parties.

Key legal issues

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01

Whether failure to be joined in earlier land proceedings raises a bona fide constitutional issue

Holding

No; adequate statutory remedies exist, so the grievance belongs under substantive law, not a constitutional petition

Reasoning

Applying the principle of avoidance and the Kenya Bus Service line of authority, the court held that not every breach of natural justice ripens into a constitutional question. The Petitioners had adequate remedies, including applying to be joined or seeking review, so the petition was an improper route.

p. 4
02

Whether an ELC may declare a High Court judgment unconstitutional

Holding

No; a co-ordinate superior court cannot exercise supervisory jurisdiction over another superior court

Reasoning

Relying on Elias Mwirigi Arimi v High Court of Kenya, the court held that a declaration against a High Court judgment would amount to review of a court of co-ordinate jurisdiction, offending Article 165(6). The proper course was to challenge the orders within the cause itself.

p. 4
03

Whether the Petitioners proved violation of their rights

Holding

No; they were aware or deemed aware of the proceedings and were not registered proprietors deprived of the land

Reasoning

The 4th Respondent's allegation that the Petitioners' parents and relatives participated in the earlier suits went uncontradicted. Further, unlike the Lekinyot Ole Lanke case, the Petitioners were not registered proprietors deprived of property without hearing; the High Court dispute was between Mbandi and Muruga Clans.

p. 4

Legal principles established

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  • The Constitution is not a general substitute for ordinary statutory remedies where adequate mechanisms exist
  • An ELC cannot declare a judgment of a court of co-ordinate jurisdiction unconstitutional; that would infringe supervisory jurisdiction under Article 165(6)
  • A lawful judgment by a competent court should be challenged through legal channels within that cause, not by independent constitutional petition

Court orders

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  1. 1.The petition dated 22nd March, 2018 is dismissed in its entirety
  2. 2.Costs of the petition awarded to the Respondents and the Interested Parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 22, 23, 27, 40, 50, 63, 64, 165(6)
  • Registered Land Act (repealed)Sections 27, 28, 30, 143
  • Land Adjudication Act (Cap. 284)Quoted sections not specified
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (10)

  • Lekinyot Ole Lanke v Attorney General & 2 Others
    [2015] eKLR, Nakuru ELC Petition No. 35 of 2014
  • Registrar of Trade Unions v Nicky Njuguna & 4 Others
    [2017] eKLR, Nairobi Civil Appeal No. 251 of 2014
  • Papinder Kaur Atwal v Manjit Singh Amit
    Nairobi Petition No. 236 of 2011
  • Anne Wangui Ngugi & Others v Edward Odundo
    [2015] eKLR
  • Kenya Bus Service Ltd & 2 Others v Attorney General
    [2005] 1 KLR 787
  • Re-Application by Bahader
    [1986] LRC (Const) 297
  • Harrikson v Attorney General of Trinidad and Tobago
    [1979] 3 WLR 62
  • Communication Commission of Kenya and 5 Others v Royal Media Services Ltd and 5 Others
    [2014] eKLR
  • Elias Mwirigi Arimi v High Court of Kenya & Others
    [2020] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 19, 20, 22, 23 of the Constitution of Kenya, 2010 (Bill of Rights enforcement jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Kimolo Kimatu & 58 others v Attorney General & 3 others; Purity Kanini Mugo & 52 others (Interested Parties) [2020] KEELC 164 (KLR)", Case Analysis (2020). Petition dated 22nd March, 2018 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/164/eng@2020-12-18

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