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ELCDismissedELC Petition Case No. 3 of 2019· [2020] KEELC 1607 (KLR)

Hillary Sambaya Akumonyo v Isaac Siitari Musa & 4 others [2020] KEELC 1607 (KLR)

Environment and Land Court
29 July 2020
2,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land rights petition because vague pleading and an unappealed court order cannot support a constitutional challenge in Kenya.

What this practically means

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Executive summary

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The petitioner, claiming to have purchased 0.07 Ha of land parcel South Kabras/Shamberere/2977 from the 1st respondent in October 2009 and to have taken possession and developed it, petitioned the Environment and Land Court at Kakamega. He alleged that the 2nd respondent's claim before the Kakamega North District Land Disputes Tribunal, conducted without joining him, violated his rights to property, fair administrative action, access to justice and fair hearing under Articles 40(1), 40(2)(b), 47(1), 48 and 50(1) of the Constitution, and that the tribunal acted ultra vires Section 3 of the Land Disputes Tribunal Act 1990. He sought declarations of rights violations, certiorari to quash the tribunal award, the order authorising the Executive Officer to sign transfer forms, and the adoption order in Butali SRMCC Misc. Award No. 4 of 2010, cancellation of titles 3645 and 3646, an order compelling transfer of his portion, or alternatively compensation of Ksh. 8,650,000/-. The 2nd respondent maintained it lawfully purchased and obtained title to the commercial portion through the tribunal process, and that the petitioner was a trespasser. The 4th and 5th respondents submitted the petition was filed after the time to appeal or seek judicial review had lapsed. Applying the Anarita Karimi Njeru principle and the authorities in Kenya Bus Company and Booth, the court held the petition lacked specificity, that an unchallenged court order cannot found a constitutional application, and that ordinary remedies must be pursued. The petition was dismissed with costs on 29th July 2020.

Key legal issues

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01

Precision in pleading constitutional violations (Anarita Karimi Njeru principle)

Holding

The petition lacked the requisite specificity and particularity

Reasoning

The court invoked the Anarita Karimi Njeru principle as clarified in Trusted Society of Human Rights Alliance and reaffirmed by the Court of Appeal in Mumo Matemu, requiring precise legal and factual claims. Concluding that the petition lacked specificity, the court held that where further facts are needed, a civil claim rather than a constitutional petition is the proper route.

p. 3
02

Adequacy of alternative remedies and abuse of constitutional process

Holding

The constitutional petition was not the appropriate remedy since ordinary law remedies existed and had lapsed

Reasoning

Relying on Kenya Bus Company and Booth, the court held that an unchallenged court order cannot found a constitutional application, that constitutional courts have inherent powers to prevent abuse of process, and that fundamental principles of law such as limitation, laches and estoppel cannot be disregarded in constitutional litigation. The tribunal award was adopted as a court order and never appealed.

p. 3
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Validity of the Land Disputes Tribunal award and adoption order

Holding

The tribunal award was adopted as a court order and title lawfully issued; it could not be collaterally challenged in a constitutional petition

Reasoning

The court found as fact that the 2nd respondent pursued its claim through the tribunal, obtained an award in its favour, which was adopted as a court order vide Butali SRMCC Misc. Award No. 4 of 2010, upon which the Executive Officer executed transfers and title issued. The 1st respondent never appealed or contested the tribunal's finding.

p. 2

Legal principles established

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  • A person alleging breach of fundamental rights must plead the complaint, the provisions infringed and the manner of infringement with reasonable precision
  • Constitutional courts cannot disregard fundamental principles of law such as res judicata, limitation, laches, estoppel, waiver and compromise when enforcing fundamental rights
  • An unchallenged court order cannot be the basis of a constitutional application

Court orders

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  1. 1.The petition is dismissed with costs
Jurisdiction invoked
Articles 22(1), 23(1) and 258(1) of the Constitution of Kenya, 2010

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, "Hillary Sambaya Akumonyo v Isaac Siitari Musa & 4 others [2020] KEELC 1607 (KLR)", Case Analysis (2020). ELC Petition Case No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1607/eng@2020-07-29

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