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ELCDismissedE.L.C. Constitutional Petition No. 4 of 2018· [2020] KEELC 2048 (KLR)

Lawrence Njeru Munyi & 10 others v Musa Njau Mithuro & 2 others [2020] KEELC 2048 (KLR)

Environment and Land Court
4 June 2020
3,066 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 constitutional petition because ordinary civil court disputes must be resolved through appeals, not constitutional filings.

What this practically means

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Executive summary

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Eleven Petitioners filed a constitutional petition in the Environment and Land Court at Embu claiming that the cancellation of their titles to Gaturi/Nembure/5385-5396 by the Chief Magistrate's Court at Embu in CMCC No. 61 of 1980, in proceedings they claimed not to have been party to, violated their rights under Articles 28, 40 and 50 of the Constitution. They sought declarations of ownership and infringement, an order of certiorari to quash the Chief Magistrate's orders of 9th October 2017 (amended 22nd November 2017), and costs. The 1st Respondent, the legal representative of the successful party in the 1980 suit, opposed the petition as an abuse of process, noting that the deceased had subdivided the disputed parcel pendente lite, that the transfers were lawfully cancelled, and that previous challenges before the High Court and the Court of Appeal had failed. The court framed four issues: whether the petition raised constitutional issues, whether violations were demonstrated, entitlement to reliefs, and costs. The court held that the petition raised no constitutional issues: the grievances arose from ordinary civil litigation with a full appellate process available, and a limitation defence is not a constitutional question. It further found the Petitioners guilty of non-disclosure of material facts, disentitling them to any remedy, and observed that the petition was mischievously filed to forestall execution of a lawful decree. The petition was dismissed in its entirety with costs to the 1st Respondent, borne by the Petitioners jointly and severally.

Key legal issues

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01

Whether the petition raises constitutional issues

Holding

No. The grievances arise from ordinary civil proceedings before courts of competent jurisdiction, with an appellate mechanism available and previously exhausted without success

Reasoning

The Petitioners' complaints flowed from the decree and orders of the Chief Magistrate's court in litigation spanning forty years. Any irregularities in civil proceedings do not necessarily raise constitutional issues where appeal mechanisms exist, and a limitation defence does not constitute a constitutional issue.

p. 3
02

Whether the Petitioners demonstrated violation of constitutional rights

Holding

No; the issue is moot given the absence of constitutional issues, and in any event the Petitioners were guilty of non-disclosure of material facts disentitling them to any remedy

Reasoning

The court had earlier found, in its ruling of 28th March 2019, that the Petitioners concealed prior applications and appeals concerning the same subject matter. Such non-disclosure is sufficient to warrant dismissal of a constitutional application.

p. 4
03

Entitlement to reliefs and costs

Holding

Petitioners not entitled to any relief; costs awarded to the 1st Respondent as the successful party under section 27 of the Civil Procedure Act

Reasoning

The petition raised no constitutional issues and was mischievously filed solely to forestall execution of a lawful decree. Costs follow the event, and no good reason was shown why the successful party should not be awarded costs.

p. 4

Legal principles established

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  • The Constitution is not a general substitute for normal procedures; where a claim can be founded under substantive law, the proper course is to bring the claim under that law and not under the Constitution
  • Where a specific procedure is provided by law for redress of a grievance, that procedure must be strictly followed
  • Res judicata applies to constitutional matters; an unchallenged court order cannot be the basis of a constitutional application; non-disclosure of material facts warrants dismissal

Court orders

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  1. 1.The petition filed on 21st September 2018 is dismissed in its entirety
  2. 2.The 1st Respondent is awarded costs of the petition to be borne by the Petitioners jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), (4), 19(2), (3), 20, 21(1), 22(1), 23(1), (3), 27, 28, 40, 45(1), 50(1), 159(2), 162(2)(b), 165(3)(b)
  • Registered Land Act (Repealed) Chapter 300 Laws of KenyaSection 159
  • Judicature Act Chapter 8 Laws of Kenyanot specified
  • Environment and Land Court ActSection 13
  • Limitation of Actions Act (Cap. 22)not specified
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (7)

  • Kenya Bus Service Ltd & 2 Others Vs Attorney General
    [2005] 1 KLR 787
  • Re-Application by Bahader
    [1986] LRC (Const) 297
  • Harrikson Vs Attorney General of Trinidad and Tobago
    [1979] 3 WLR 62
  • Peter Muturi Njuguna V Kenya Wildlife Service
    [2017] eKLR
  • The Speaker of the National Assembly -vs- Karume
    [2008] 1 KLR 426 (EP)
  • Kimani Wanyoike -vs- Electoral Commission
    Civil Appeal No. 213 of 1995 (UR)
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 22(1), 23(1) and 165(3)(b) of the Constitution of Kenya 2010; Environment and Land Court Act Section 13

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, "Lawrence Njeru Munyi & 10 others v Musa Njau Mithuro & 2 others [2020] KEELC 2048 (KLR)", Case Analysis (2020). E.L.C. Constitutional Petition No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2048/eng@2020-06-04

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