Ernest Ikoha & 19 others v County Government of Kakamega [2020] KEELC 1593 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Precision in constitutional pleadings (Anarita Karimi Njeru rule)
The petitioners failed to meet the precision test and the petition was incompetent
The court held that a party alleging violation of fundamental rights must plead with particularity, identifying the specific right violated and the manner of violation. The petitioners were licensees in a public market and did not identify any specific private property for the court to protect. Following Anarita Karimi Njeru as clarified in Trusted Society of Human Rights Alliance and reaffirmed in Mumo Matemu, the petition lacked the requisite specificity and failed.
Article 40 right to property
No violation established because the petitioners had no proprietary interest in the public land
The land was conceded to be public utility land vested in the County Government as trustee for residents. The petitioners were licensees whose licences did not convey proprietary interest. Since they did not own the land, they could not be 'deprived' of property within the meaning of Article 40, and their claim under that Article had no basis.
Article 47 fair administrative action and adequacy of notice
No violation established; the 14-day notice was not shown to be unreasonable
The petitioners were licensees, not allottees or proprietors, and as such were entitled only to reasonable notice. They did not adduce any evidence that the 14-day notice to vacate was unreasonable or vague. The allegation that the notices were inhuman, vague and unreasonable was therefore not made out on the evidence.
Existence of an alternative remedy in ordinary law
A constitutional petition is confined to clear constitutional matters; where ordinary law provides relief, it must be pursued
The court reasoned that a constitutional petition is meant to deal with clear constitutional matters where facts can be ascertained, and where further facts are needed the petitioner ought to revert to a civil claim. Since a remedy existed in ordinary law, such as malicious damage to property, the constitutional jurisdiction should not be trivialised and the petition was unmerited.
Legal principles established
#- A person seeking redress on a matter involving reference to the Constitution should set out with a reasonable degree of precision the provision said to be infringed and the manner of infringement
- One cannot claim deprivation of property under Article 40 in respect of property over which one has no proprietary rights
- Constitutional jurisdiction should not be trivialised; where the ordinary law provides a remedy, that remedy must be pursued
Court orders
#- 1.The petition is dismissed
- 2.Costs of the petition to the respondent
- Jurisdiction invoked
- Constitution of Kenya, Article 40 and Article 47 (petition alleging violation of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Ikoha & 19 others v County Government of Kakamega [2020] KEELC 1593 (KLR)", Case Analysis (2020). ELC Petition Case No. 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1593/eng@2020-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.