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ELCAllowedConstitutional Petition dated 25th January 2019 (Narok/Migori ELC)· [2021] KEELC 379 (KLR)

Samuel K. Ngerech & 3 others v Attorney General; Joseph Kipkoech Ngerechi (Applicant/Interested Party) [2021] KEELC 379 (KLR)

Environment and Land Court
30 November 2021
MKMohamed N. Kullow
1,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a constitutional petition because the same litigants were already appealing the same decision - you cannot run both.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court by Notice of Motion dated 19th March 2019, amended 28th July 2020, seeking dismissal or striking out of the Petitioners' Constitutional Petition with costs. The Petitioners had instituted the Petition seeking declaratory orders over alleged constitutional rights violations arising from a warrant of eviction issued by the trial Magistrate in Narok CMCC No. 1 of 2017 and eviction orders of 7th November 2018 concerning Land Parcel Narok CIS/Mara-Lemek/2814. The trial court's ruling of 23rd December 2015 had found fraud and irregularities in mutation forms and directed eviction; the Petitioners obtained leave to appeal out of time by a ruling of 19th June 2020 and filed ELC Appeal No. 21 of 2020, but simultaneously filed the Constitutional Petition attacking the same orders. The Petitioners did not participate despite service. Justice Mohamed N. Kullow held that a litigant cannot pursue an appeal and a constitutional petition against the same decision simultaneously; doing so is 'betting' on a favourable outcome and an abuse of court process, citing Mativo J in the Law Society of Kenya ex parte case and the Nigerian decision in Agwusin v Ojichie. The court dismissed the Petition dated 25th January 2019 with costs to the Applicant.

Key legal issues

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Whether the Constitutional Petition should be struck out as an abuse of court process given the pending appeal

Holding

The Petition was struck out/dismissed because pursuing the same orders via both an appeal (ELC Appeal No. 21 of 2020) and a constitutional petition amounted to an abuse of process

Reasoning

The eviction orders of 7th November 2018 emanated directly from the trial Magistrate's ruling of 23rd December 2015, against which leave to appeal had been granted and an appeal filed. Attacking the same orders on two fronts - by appeal and constitutional petition - amounted to 'betting' for a favourable outcome, an abuse of process and waste of judicial time. The proper course was to seek stay pending appeal.

p. 2

Legal principles established

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  • A litigant cannot simultaneously pursue an appeal against a decision and a constitutional petition alleging infringement arising from the same decision; doing so is an abuse of court process.
  • A litigant cannot pursue two concurrent processes in two different courts with the same effect in the hope of victory in one or both.

Court orders

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  1. 1.The Petitioners' Petition dated 25th January 2019 dismissed
  2. 2.Costs of the application to the Applicant

Authorities

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Cases cited (3)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Agwusin Vv Ojichie
  • Agnes Muthoni Nyanjui & 2 others v Annah Nyambura Kioi & 3 others
    [2015] eKLR
Jurisdiction invoked
Constitutional Petition jurisdiction of the Environment and Land Court (constitutional rights violation claim; strike-out application thereunder)

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, "Samuel K. Ngerech & 3 others v Attorney General; Joseph Kipkoech Ngerechi (Applicant/Interested Party) [2021] KEELC 379 (KLR)", Case Analysis (2021). Constitutional Petition dated 25th January 2019 (Narok/Migori ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/379/eng@2021-11-30

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