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ELCDismissedPetition dated 15/4/2014 (filed 16/4/2014)· [2020] KEELC 3965 (KLR)

Christopher Kurutyon Lonyala & 26 others v Cabinet Secretary Ministry of Lands and Settlement & 10 others; Ekitale Ekal Lodio & 11 others (Interested Parties) [2020] KEELC 3965 (KLR)

Environment and Land Court
29 May 2020
MNMwangi Njoroge
4,042 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 in Kitale dismissed a land petition because it lacked precision on constitutional violations and used the wrong legal procedure.

What this practically means

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Executive summary

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The petitioners, purporting to represent about 100,000 allottees of the Chepchoina Settlement Scheme in Trans-Nzoia County, sought a permanent injunction, leave for judicial review and orders of certiorari, prohibition and mandamus against the District Land Adjudication & Settlement Officer and others, alleging that strangers, including purported Ugandan nationals, had corruptly been allocated land in Phase 2 of the scheme and that the Provincial Administration sought to regularise those allocations and evict genuine allottees. They relied on Articles 22, 23(3), 27, 40, 47 and 67(2)(e) of the Constitution. The respondents (through F.O. Obiria) and the 10th and 11th respondents disputed the alleged presidential decree, the claims of mass foreign allocation, and the petitioners' standing and entitlements, maintaining the SFT held and administered the land. Interested parties (ADC allottees) alleged double allocation after SFT repossession in 2012. The court framed three issues: constitutional threshold, jurisdiction, and costs. Applying Anarita Karimi Njeru and Mumo Matemu, it found the pleading lacked precision on infringed provisions. The petitioners' own framing of issues omitted any constitutional clauses. Since the land had been transferred to the SFT before any title issued, an Article 40 claim was untenable; the dispute involved contested facts unsuitable for a petition, and proper remedies lay in a plaint, judicial review, or originating summons. The petition was dismissed with costs to the respondents, borne by the petitioners.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold

Holding

It did not; the petition pleaded constitutional provisions in section B but did not state which were violated and in what manner

Reasoning

The court applied the Anarita Karimi Njeru test, later affirmed in Mumo Matemu, requiring precision in identifying the infringed provisions and manner of infringement. Sections C and D of the petition failed to state and distinguish which provisions were violated, so the pleading was fatally deficient.

p. 5
02

Whether the court's jurisdiction was properly invoked

Holding

It was not; the real dispute concerned entitlement to land allocations under the SFT and was unsuitable for a constitutional petition

Reasoning

The issues as framed by the petitioners themselves in submissions contained no reference to constitutional clauses. Land still under adjudication could not ground an Article 40 claim, and contentious questions of fact belong in a civil suit, not a petition. Proper avenues were a plaint, judicial review under Order 53, or originating summons for adverse possession.

p. 6
03

Priority of ADC versus SFT allottees

Holding

Distinguished from Arthur Kamau Kariuki; in this case the petitioners admitted the land was transferred to the SFT and they held no title

Reasoning

Unlike Arthur Kamau, where RTA titles existed and the transferred land excluded the suit properties, here all parties admitted the chain of transfer to the SFT before any title issued to petitioners, making an Article 40 claim untenable.

p. 6

Legal principles established

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  • A petition invoking constitutional jurisdiction must identify with precision the constitutional provisions infringed and the manner of infringement, and mere allegation of constitutional rights does not make a dispute constitutional where a clear statutory procedure exists

Court orders

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  1. 1.The petition dated 15/4/2014 is dismissed
  2. 2.Costs of the petition awarded to the respondents, to be borne by the petitioners

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23(3), 27, 40, 47, 64, 67(2)(e)
  • Civil Procedure Rules (Revised)Order 53(1), (2) and (3); Order 37
  • Agriculture Actnot specified
  • Land Adjudication Actsection 26
  • Judicature Actsection 9(3)
  • Registration of Titles Act (RTA)not specified
  • Registered Land Act (RLA)not specified

Cases cited (7)

  • Anarita Karimi Njeru -vs- Attorney General
    (1979) KLR 154
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance and others
    Nairobi Civil Appeal No. 290 of 2012
  • Chemey Investment Limited v Attorney General and 2 Others
    Civil Appeal No. 349 of 2012 [2018] eKLR
  • Arthur Kamau Kariuki v Chief Land Registrar & 5 others, Agricultural Development Corporation (Interested Party)
    [2019] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Petro Oil Kenya Limited v Kenya Urban Roads Authority
    [2018] eKLR
  • Electrical Options Limited V Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Articles 22 and 23(3) of the Constitution of Kenya

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, "Christopher Kurutyon Lonyala & 26 others v Cabinet Secretary Ministry of Lands and Settlement & 10 others; Ekitale Ekal Lodio & 11 others (Interested Parties) [2020] KEELC 3965 (KLR)", Case Analysis (2020). Petition dated 15/4/2014 (filed 16/4/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3965/eng@2020-05-29

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