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ELCStruck OutConstitutional Petition No. 2 of 2017· [2020] KEELC 743 (KLR)

Redempta Ogwatai Imoo v Moses Omuse Ekabaten & 2 others [2020] KEELC 743 (KLR)

Environment and Land Court of Kenya
10 November 2020
AOA. Omollo
3,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Busia struck out a constitutional petition because the landowner should have appealed the magistrate's decision instead of claiming constitutional violations.

What this practically means

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Executive summary

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The Petitioner claimed she bought 1.5 acres from Alfred Ekabten Ingaa (deceased) in 2004, took possession and built a home, and won before the Amukura Land Disputes Tribunal, whose award was adopted in 2006. The 1st Respondent, the vendor's son, then sued his father and the Petitioner in Busia CMCC Civil Case No. 40 of 2006, which proceeded exparte and resulted in a permanent injunction against her on 4/2/2009. She said she was never served with hearing notices, learned of the judgment only in 2017, and her application to set it aside was dismissed on 5/6/2017. She filed this constitutional petition seeking a conservatory order, declarations of violation of her rights to fair hearing and property, an order for due process, and certiorari to quash the proceedings, judgment and ruling. The 1st Respondent argued the Petition was defective, unserved allegations were false and adequate appeal remedies existed; the 2nd and 3rd Respondents filed grounds of opposition including that certiorari was statute-barred. The court framed three issues: violation of rights, availability of remedies, and abuse of process. It held that Articles 47 and 258 did not apply retrospectively to a 2009 judgment; the alleged violations were not proved, partly because the subordinate court pleadings were not annexed; and issues of locus standi, non-service and abatement belonged on appeal or before the trial court under Order 10 rule 11. Applying Speaker v Njenga Karume, Harrikissoon and related authority, it found the Petition an irregular back-door appeal. The Petition was struck out with each party bearing their own costs.

Key legal issues

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01

Whether the Petitioner's rights under Articles 40 and 47 were violated by the exparte proceedings in Busia CMCC 40 of 2006

Holding

No violation was proved. The alleged defects (locus standi, non-service, abatement, mistake on the face of the record) were not demonstrated, and most were matters for appeal or for the trial court under Order 10 rule 11.

Reasoning

The Petitioner did not annex the pleadings from the subordinate court suit, so the court could not verify whether locus standi was raised in her defence or whether the judgment was based on an unfiled amended plaint. Non-service was partly addressed by her set-aside application which was dismissed, and she had a right of appeal which she did not exercise. The suit against her did not abate, and the decree had not been set aside.

p. 4
02

Whether the constitutional petition was the proper vehicle, given the availability of appeal and review

Holding

No. The Petition was an irregular attempt to sit on appeal against the magistrate's court decision through the back door; the efficacious remedies were appeal and review.

Reasoning

Relying on Speaker of National Assembly v Njenga Karume, Yusuf Gitau, Fatuma Mohamed Sharif (citing Kemrajh Harrikissoon) and Judy Watiri Wambugu, the court held that where a clear procedure for redress exists it must be strictly followed, and a constitutional petition must not be misused as a general substitute for normal procedures such as appeal or review.

p. 5
03

Whether the 2010 Constitution's provisions could be applied retrospectively to proceedings concluded in 2009

Holding

The rights under Articles 47 and 258 came into effect in August 2010, after the judgment complained of, and the Petitioner ought to have cited the old Constitution under the transitional provisions.

Reasoning

The court observed that the complained-of judgment was delivered on 19th March 2009, before the 2010 Constitution took effect. Applying the 2010 provisions retrospectively was therefore irregular, and the Petitioner should have relied on the old Constitution via the transitional and consequential provisions (Section 261).

p. 4

Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed and a constitutional petition is not a general substitute for normal procedures.
  • A party must obey an order of a court of competent jurisdiction unless and until it is discharged.
  • Issues such as locus standi of a plaintiff and non-service are matters for appeal or for the trial court under Order 10 rule 11, not for a fresh constitutional petition.

Court orders

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  1. 1.The Petition is struck out for lacking merit
  2. 2.Each party to meet their respective costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 165(6), 258 and 261
  • Registered Land Act Cap 300 (Repealed) / Registration of Land Act 2012
  • Land Control Act Cap 302sections 6 and 22
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013rules 2(f) and 3(8)
  • Civil Procedure RulesOrder 10 rule 11; Order 53
  • Civil Procedure Act

Cases cited (9)

  • Sahazi Vs Cherogeny (1984) KLR 814
    (1984) KLR 814
  • Gabriel Matara & 2 others Vs MD Kenya Ports Authority (2016) eKLR
    (2016) eKLR
  • Willy Kimutai Kitilit Vs Michael Kibet (2018) eKLR
    (2018) eKLR
  • Hardkison Vs Hardkison (1982) ALL ER 567
    (1982) ALL ER 567
  • Speaker of National Assembly Vs Njenga Karume (2008) IKLR 425
    (2008) 1 KLR 425
  • Yusuf Gitau Vs Building Center (K) Ltd & 4 others (2014) eKLR
    (2014) eKLR
  • Fatuma Mohamed Sharif vs The Principal Magistrate's Court Kajiado & Others, Petition No. 67 of 2014
    Petition No. 67 of 2014
  • Kemrajh Harrikissoon vs Attorney General of Trinidad and Tobago (1979) WLR 63
    (1979) WLR 63
  • Judy Watiri Wambugu vs Chief Land Registrar & Others, Nakuru High Court, Constitutional Petition No. 49 of 2012
    Constitutional Petition No. 49 of 2012
Jurisdiction invoked
Articles 22, 23, 47, 165(6) and 258 of the Constitution of Kenya

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, "Redempta Ogwatai Imoo v Moses Omuse Ekabaten & 2 others [2020] KEELC 743 (KLR)", Case Analysis (2020). Constitutional Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/743/eng@2020-11-10

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