Swaleh Hussein Saleh & 2 others v National Land Commission & 3 others; Iqbal Ahmed Bayusuf & 4 others (Interested parties) [2021] KEELC 317 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land rights petition, ruling that minor paperwork defects cannot block serious claims from a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition should be struck out for want of locus standi and defects in the grant and power of attorney relied upon
The application to strike out failed; the Petition raised weighty constitutional and triable issues deserving a full hearing, and the name discrepancy was an inadvertent typographical error
The court held that public interest proceedings raising fundamental rights violations are taken seriously and raise weighty, triable issues requiring a full trial. The concerns about the grant ad colligenda bona, the power of attorney, and the misdescription of the 1st Petitioner's name were technicalities barred by Article 159(2)(d) of the Constitution. Striking out is discretionary and drastic, to be used sparingly where a pleading is incurable by amendment.
Precision of pleadings in constitutional petitions
The Petition complied with the Anarita Karimi Njeru standard of reasonable precision and was properly before the court
Applying the Mumo Matemu standard grounded in Anarita Karimi Njeru, the court was satisfied that the constitutional violations were pleaded with reasonable degree of precision, so the Petition met the threshold for instituting the constitutional claim and could not be struck out for want of particularity.
Legal principles established
#- Public interest constitutional proceedings raising weighty and triable issues should be heard and determined on their own merit rather than struck out on technicalities
- Striking out a suit is a draconian and drastic remedy to be resorted to sparingly as a last resort, only where a pleading cannot be salvaged by amendment
- No suit ought to be summarily dismissed unless it is plainly and obviously incurable by amendment
Court orders
#- 1.The Notice of Motion application dated 22nd January 2021 by the 1st Interested Party is found to be unmeritorious and is dismissed
- 2.The Notice of Motion application dated 8th December 2020 by the Petitioner be disposed of by way of written submissions, with the Interested Parties and Respondents who have not responded to file responses within 21 days
- 3.The 1st, 2nd and 3rd Petitioners granted 21 days to file and serve supplementary affidavit and written submissions
- 4.The 1st to 5th Respondents and the 1st to 3rd Interested Parties granted 21 days thereafter to file and serve written submissions
- 5.The matter be mentioned on 3rd February 2022 for further directions and taking a ruling date
- 6.In the alternative, the parties may by consensus consider preservation of the suit property and adjudication of the Petition by viva voce evidence followed by written submissions
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Article 22 and 258 of the Constitution of Kenya; Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swaleh Hussein Saleh & 2 others v National Land Commission & 3 others; Iqbal Ahmed Bayusuf & 4 others (Interested parties) [2021] KEELC 317 (KLR)", Case Analysis (2021). Petition dated 8th December 2020 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/317/eng@2021-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.