Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Petition Case No. 5 of 2018· [2020] KEELC 3608 (KLR)

George Wachira Kirira v Deputy Registrar, High Court Nyeri & 4 others [2020] KEELC 3608 (KLR)

Environment and Land Court
13 February 2020
4,502 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a landowner's constitutional petition, confirming you cannot revive an old, decided land dispute by dressing it up as a rights violation.

What this practically means

#

Executive summary

#
The Petitioner, a former judgment debtor, petitioned the Environment and Land Court at Nyeri alleging that arbitration proceedings held in 1982 while he was in custody, the adoption of the award as a judgment in Nyeri High Court Civil Case No. 286 of 1982, the auction of his land parcel Ruguru/Kiamariga/410 by the 2nd Respondent auctioneer, the vesting orders in favour of the 3rd Respondent, and the failure to schedule his criminal appeal, contravened his rights to property, fair trial, administrative action, access to justice and the rights of older members of society under Articles 40, 47, 48, 50 and 57. He sought declarations, restoration of the land, damages and a permanent injunction. All Respondents opposed, contending the Petition was res judicata, an abuse of process and defective as a constitutional petition. The court framed two issues: whether a constitutional petition can lie between private parties, and whether the Petition was res judicata. Relying on Fredericks, Teitinnang v Ariong, Alphonse Mwangemi Munga and CNM v WMG, the court held the Petition did not meet the constitutional threshold, as fundamental rights duties are owed by the state and private disputes cannot be dressed as constitutional violations. Applying Section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa test, it found the same parties and issues had been conclusively determined by courts of competent jurisdiction, including dismissal of multiple applications to set aside the award and successive Court of Appeal applications. The Petition was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether a constitutional petition can lie between two private parties

Holding

The Petition did not meet the threshold of a constitutional petition; the dispute was a private law matter and courts abhor converting every issue into a constitutional question

Reasoning

Relying on Fredericks, Teitinnang v Ariong, Alphonse Mwangemi Munga and CNM v WMG, the court held that fundamental rights duties are owed by government to the governed, not between private individuals. The Bill of Rights should be invoked only when extremely necessary; parties cannot disguise private disputes as constitutional petitions.

p. 5
02

Whether the Petition is res judicata

Holding

The Petition was res judicata and an abuse of court process, having been conclusively decided in Nyeri High Court Civil Case No. 286 of 1982 and subsequent proceedings

Reasoning

Applying Section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa test, the court found the issues and parties were the same, the arbitration award had been adopted as judgment, applications to set it aside were dismissed, and successive Court of Appeal applications were dismissed. The Petitioner was attempting to camouflage decided matters in new pleadings.

p. 6

Legal principles established

#
  • Private law disputes between individuals should not be dressed as constitutional violations; duties under fundamental rights provisions are owed by the state, not by one private individual to another
  • Constitutional petitions cannot be used as a general substitute for normal civil procedures where no constitutional right is contravened
  • A matter already finally determined by courts of competent jurisdiction between the same parties is res judicata and cannot be revived in constitutional form

Court orders

#
  1. 1.The Petition is hereby dismissed with costs to the Respondents

Authorities

#

Legislation

  • Constitution of KenyaArticles 20(1)-(4), 21, 22, 23, 40, 47, 48, 50(1), 50(2)(a,c,d,e,f,k,(5)a,b,(6)), 57, 159, 165, 258
  • Judicature ActSection 6
  • Civil Procedure Act Cap 21Section 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
  • Civil Procedure Act and Rules
  • Court of Appeal Rules

Cases cited (12)

  • Joel Oonsare vs Governor Trans Nzoia County & 16 Others
    [2014] eKLR
  • CNM vs WMG
    [2018] eKLR
  • Fredericks & Others vs MEC for Education and Trading, Eastern Cape & Other
    [2002] 23 ILJ 81 (CC)
  • Silas Make Otuke vs Attorney General & 3 Others
    [2014] eKLR
  • Yasmin Rashid Ganatra & Another vs Gulzar Abdul Wais & Another
    [2017] eKLR
  • Francis Gathungu Waithaka vs Kenyatta University
    (2012) eKLR
  • Teitinnang vs. Ariong
    [1987] LRC (Const).517
  • Alphonse Mwangemi Munga vs. African Safari Club
    [2008] eKLR
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • E.T vs Attorney General & Another
    (2012) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another Nairobi HCCC No.2340 of 1991
    (unreported)
Jurisdiction invoked
Articles 20(1)-(4), 21, 22, 23, 40, 47, 48, 50, 57, 159, 165 and 258 of the Constitution of Kenya; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Wachira Kirira v Deputy Registrar, High Court Nyeri & 4 others [2020] KEELC 3608 (KLR)", Case Analysis (2020). ELC Petition Case No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3608/eng@2020-02-13

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