Fred Munialo Maelo v Mathew Wamalwa Wafula & 2 others [2020] KEELC 1679 (KLR)
The bottom line
#A Kenyan landowner whose title was secretly cancelled can still sue years later, because constitutional petitions have no strict deadline.
What this practically means
#Executive summary
#Key legal issues
#Limitation of constitutional petitions alleging violation of fundamental rights
The six-month limitation for judicial review/certiorari does not apply; the Petition is not statute barred as delay was not inordinate
The 1st Respondent argued the Petition was time barred under the six-month rule for certiorari. The court distinguished PENINA NDUTA KARONGO as a judicial review application governed by Order 53 and Section 9(3) of the Law Reform Act. Citing WELLINGTON NZIOKI KIOKO v A G, it held constitutional petitions face no limitation period except unexplained inordinate delay. The Petitioner discovered the cancellation only on 16th April 2020 and filed promptly; even dating back to 2011, delay was not inordinate.
Whether fundamental rights claims lie against private individuals
Yes; the earlier vertical-application position in FRANCIS WAITHAKA has been overtaken by emerging jurisprudence
Counsel argued, citing FRANCIS WAITHAKA v KENYATTA UNIVERSITY and TEITINNANG v ARIONG, that individuals owe no fundamental-rights duty to other individuals. The court noted LENAOLA J himself departed from that view in JEMIMA WAMBUI IKERE and MIKE RUBIA, holding non-state actors can be liable. Article 2 and Article 20(1) bind all persons; the Petition also targets two government agencies.
Adequacy of the constitutional petition versus an alternative civil suit
A party may pursue the most efficacious remedy; the Petition satisfies the ANARITA KARIMI NJERU standard
Citing RASHID ODHIAMBO ALOGGOH v HACO INDUSTRIES, the court held there is no rule barring a constitutional petition where another remedy exists. The Petition pleaded the constitutional provisions violated (paragraphs 16-28) and particulars of infringement (paragraphs 29-33), meeting the ANARITA KARIMI NJERU test as approved in MUMO MATEMU. Substance of allegations is for trial.
Whether the Giella criteria for temporary injunction and an inhibition under Section 68 of the Land Registration Act were met
A prima facie case was demonstrated on the competing titles; real danger of alienation justified both a temporary injunction and inhibition
Both parties hold titles (Petitioner's issued 17th June 1997; 1st Respondent's 29th November 2019). Applying MRAO's definition of prima facie case, the Petitioner showed an apparent infringement calling for explanation. MBUTHIA v JIMBA and FILMS ROVER guided the interlocutory approach. Real danger existed that the property would be alienated to third parties beyond the court's reach; balance of convenience also favoured the Petitioner.
Legal principles established
#- There is no limitation period for constitutional petitions alleging violation of fundamental rights, save for inordinate unexplained delay
- Private individuals can be sued for breach of fundamental rights; the Bill of Rights binds all persons
- It is not a principle of law that a constitutional petition cannot be filed where another remedy exists
- Where there are two competing titles, the first in time prevails
- Where the root of a title is under challenge, the title alone is insufficient proof of ownership
Court orders
#- 1.Temporary injunction restraining the 1st Respondent from cutting, splitting, transporting or dealing with Eucalyptus trees on L.R NO WEST BUKUSU/EAST SABOTI/1612 pending hearing and determination of the Petition
- 2.Order of inhibition restraining any dealings and transactions on the register of L.R NO WEST BUKUSU/EAST SABOTI/1612 pending hearing and determination of the Petition
- 3.All Respondents to file and serve responses to the Petition within 14 days
- 4.Petitioner to have 3 days from service to file any supplementary affidavit, with corresponding leave to Respondents
- 5.Mention before the Deputy Registrar on 29th July 2020 to confirm compliance
- 6.Petition to be canvassed by way of oral testimony
- 7.Hearing by video link on 17th September 2020
- 8.Costs of the application to be in the Petition
- Jurisdiction invoked
- Articles 22 and 23(3) of the Constitution; Rule 21 of the Constitution (Protection of Rights and Fundamental Freedoms) Rules 2012; Section 68 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Munialo Maelo v Mathew Wamalwa Wafula & 2 others [2020] KEELC 1679 (KLR)", Case Analysis (2020). Petition filed 11th May 2020 (Notice of Motion dated 4th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1679/eng@2020-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.