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ELCDismissedELC Constitutional Petition, Kitale (number not stated in judgment)· [2020] KEELC 2201 (KLR)

Michael Bett Siror & another v National Land Commission & another; Stephen Sugut & 12 others (Interested Parties) [2020] KEELC 2201 (KLR)

Environment and Land Court of Kenya
29 May 2020
5,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to grant quick judgment based on claimed admissions, ruling the dispute must go through a full hearing because the denials raised genuine questions to try.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) on a notice of motion dated 22 October 2019 by the 2nd petitioner seeking entry of judgment for injunctive and declaratory orders against the National Land Commission, the 2nd respondent and others upon alleged compromise or admission of the petitioner's claim, alternatively for leave to seek summary judgment against the Government, together with directions on general and exemplary damages and costs. The claim concerned the alleged fraudulent conversion of Parcel LR 6614/6 South East Kitale to Cherangani Trans Nzoia Block 14/Tunen, with subdivisions, allocations and titling. The 1st respondent denied ever acquiring or being asked to acquire the parcel and denied involvement in the conversions; the 2nd respondent denied interference with the land and challenged the admissibility of internal memos relied on; interested parties opposed, contending the application sought to steal a march and that no admissions existed. The court first held that although the Mutunga Rules contain no provision for summary judgment or judgment on admission, the Civil Procedure Act and Rules may be invoked in constitutional petitions, technicalities notwithstanding. However, applying Order 25 Rule 5 and Order 13 Rule 2, it found the respondents' responses amounted to outright denials and that admissions must be plain and obvious. Counsel's unsworn assertions were not admissions, and the disputed internal memos raised triable issues. The application was dismissed with costs in the cause, the substantive petition to proceed by way of submissions.

Key legal issues

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01

Whether the Civil Procedure Act and Rules may be invoked in aid of a constitutional petition under the Mutunga Rules

Holding

Yes. The Mutunga Rules contain no provision for summary judgment or judgment on admission, but the court may reach out for enabling provisions of the Civil Procedure Act and Rules to aid expedited justice, applying Article 159(2)(d) and rule 3(8) of the Mutunga Rules on inherent power.

Reasoning

The court noted the Mutunga Rules lack provisions on summary judgment or judgment on admission but refused to reject the application on that basis alone. Relying on Vallerie Namtilu Wafula and Nicolaas Hendrick Claassen, it held that technicalities of procedure should not restrict enforcement of Bill of Rights claims and that an application cannot be defeated merely because it cites the wrong or additional provisions. Rule 3(8) preserves the court's inherent power to make orders necessary for the ends of justice.

p. 4
02

Whether the respondents compromised the suit or admitted the petitioner's claim so as to warrant judgment under Order 25 Rule 5 or Order 13 Rule 2

Holding

No. The respondents expressly denied the conversions, subdivisions and titling, and the 2nd respondent challenged the admissibility of the internal memos relied on. There is therefore no plain and obvious admission or lawful compromise, and at least one triable issue exists.

Reasoning

The court examined the respondents' grounds and found outright denials of the gravamen of the claim. The 2nd respondent's objection that the internal memos offended the Evidence Act meant the documents themselves were disputed, defeating any claim of compromise. Counsel's responses were not sworn admissions, and no written consent signed by all parties was produced. Separating admissions from non-admissions would be as arduous as trying the petition itself, so the matter must proceed to full hearing.

p. 6
03

Whether leave and judgment against the Government provisions relied on apply

Holding

No. Order 1 rule 20, Order 1 rule 19 and Order 10 rule 8 were set out and found inapplicable to the instant case.

Reasoning

The applicant sought leave to enter judgment against the Government, invoking Order 1 rule 20 and Order 10 rule 8 which require court leave before judgment against the Government, and Order 1 rule 19 on third-party default. After reproducing these provisions the court declined to dwell on them, holding they do not apply to the circumstances of this constitutional petition, there being no default or applicable third-party procedure and no proved basis for judgment on admission in any event.

p. 5

Legal principles established

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  • Nothing bars the application of the Civil Procedure Act and Rules in appropriate circumstances in a constitutional petition; where respondents admit a constitutional claim the court may enter judgment on admission even absent a specific Mutunga Rules provision
  • Admissions relied on for judgment on admission must be plain, obvious and unequivocal; where there are serious questions of law or fact to be tried, judgment on admission cannot issue
  • Counsel's unsworn assertions in responses do not amount to admissions capable of supporting judgment on admission

Court orders

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  1. 1.The notice of motion dated 22/10/2019 is dismissed for lack of merit
  2. 2.The costs of the application are ordered to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b) and (d)
  • Constitution of Kenya, 2010Article 22(3)
  • Constitution of Kenya, 2010Article 259(1)
  • Civil Procedure ActSection 1A
  • Civil Procedure Rules, 2010Order 25 Rule 5
  • Civil Procedure Rules, 2010Order 13 Rule 2
  • Civil Procedure Rules, 2010Order 1 Rule 20
  • Civil Procedure Rules, 2010Order 1 Rule 19
  • Civil Procedure Rules, 2010Order 10 Rule 8
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2, 3(8), 4, 5(b) and (c), 19
  • Evidence ActCap 80 (as invoked by the 2nd respondent)
  • Land ActPart VIII (compulsory acquisition mandate of the NLC)

Cases cited (7)

  • Vallerie Namtilu Wafula & Another v Kenya National Union of Teachers (KNUT) & 2 Others
    [2012] eKLR
  • Meme v Republic
    [2014] 1 EA 124; [2004] 1 KLR 637
  • Nicolaas Hendrick Claassen v Commissioner of Lands & 4 Others
    Kitale Constitutional Petition No 7 of 2015 [2016] eKLR
  • Winfred Nyawira Maina v Peterson Onyiego Gichana
    [2013] eKLR
  • Choitram v Nazari
    (1982-88) 1 KAR 437
  • Gilbert v Smith
    [1876] 2 Ch D 686
  • Kiprotich v Gathua and Others
    [1976] KLR 87
Jurisdiction invoked
Article 159(2)(b) and (d) of the Constitution; Article 22(3) via the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules); with resort to the Civil Procedure Act (section 1A) and Civil Procedure Rules 2010 (Orders 25 Rule 5, 13 Rule 2, 1 Rule 20, 1 Rule 19, 10 Rule 8)

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, "Michael Bett Siror & another v National Land Commission & another; Stephen Sugut & 12 others (Interested Parties) [2020] KEELC 2201 (KLR)", Case Analysis (2020). ELC Constitutional Petition, Kitale (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2201/eng@2020-05-29

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