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ELCStruck Out· [2021] KEELC 392 (KLR)

Valentine Odhiambo & 2 others v HF Development & Investment Ltd & another [2021] KEELC 392 (KLR)

Environment and Land Court
15 December 2021
2,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out Komarock Heights residents' constitutional petition because their real dispute with the developer was contractual, not a rights violation.

What this practically means

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Executive summary

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The 1st Respondent, an estate developer, raised a preliminary objection dated 4th November 2021 seeking to strike out the Petitioners' petition and Notice of Motion dated 15th October 2021 on three grounds: that the petition disclosed no constitutional issue, that it offended the doctrine of constitutional avoidance, and that it offended the doctrine of exhaustion in respect of the water supply claim under sections 92 and 121(2) of the Water Act. The 2nd Respondent, Nairobi Water & Sewerage Company Ltd, supported the objection. The Petitioners, members of Komarock Heights Owners Association, contended that their rights under Articles 35, 42 and 70 had been infringed through structural defects in the houses purchased, failure to complete project works, and disconnection of water supply. The court consolidated grounds 1 and 2 of the objection and found that the real dispute was contractual: the Petitioners sought to compel the developer to perform contractual obligations, and the petition was merely a breach of contract claim clothed in Bill of Rights language. The court upheld the constitutional avoidance limb and struck out the petition as an abuse of process. However, on exhaustion, the court agreed with the Petitioners that the Water Tribunal would lack jurisdiction over their dispute with the 2nd Respondent since they had no business contract with it, and disallowed that limb of the objection. Noting that the dispute could be refiled in proper form, and that the striking out occurred before the close of pleadings, the court declined to condemn the Petitioners to costs, ordering each party to bear its own costs.

Key legal issues

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01

Whether the petition offends the doctrine of constitutional avoidance

Holding

Yes. The petitioners and the 1st Respondent are in a contractual relationship; the dispute is a claim for breach of contract dressed in Bill of Rights language.

Reasoning

The court analysed the supporting affidavit and found the petitioners are purchasers of houses from the 1st Respondent, who made representations and assumed contractual obligations including common services, which it allegedly failed to perform. The real dispute is contractual between the petitioners and the 1st Respondent; the 2nd Respondent's disconnection of water flowed from the 1st Respondent's default in paying bills. The court therefore upheld grounds 1 and 2 of the preliminary objection and struck out the petition as an abuse of process.

p. 4
02

Whether the petition offends the doctrine of exhaustion under sections 92 and 121(2) of the Water Act

Holding

No. The Water Tribunal would lack jurisdiction because there is no business contract between the petitioners and the 2nd Respondent.

Reasoning

Section 121 of the Water Act, 2016 confers on the Water Tribunal jurisdiction over appeals from the Cabinet Secretary, the Authority and Regulatory Board, and disputes concerning water resources or services where there is a business contract and no alternative dispute resolution agreement. Since the petitioners have no business contract with the 2nd Respondent, the Tribunal cannot hear their dispute, so the third limb of the preliminary objection fails for lack of merit.

p. 4

Legal principles established

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  • A court will not determine a constitutional issue where a matter may properly be decided on another basis (constitutional avoidance)
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before invoking the jurisdiction of the courts
  • Framing an ordinary suit as a constitutional petition does not deprive the court of jurisdiction; the defect is one of form, not jurisdiction

Court orders

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  1. 1.The Court upholds points 1 and 2 of the 1st Respondent's Preliminary Objection
  2. 2.Point 3 of the preliminary objection is disallowed
  3. 3.The Petition and the Notice of Motion dated 15th October, 2021 be and are hereby struck out
  4. 4.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35, 42, 70, 159
  • Water Act, No. 43 of 2016Sections 92 and 121(2)

Cases cited (11)

  • Earnest Muga Vs Attorney General
    (2018) eKLR
  • Sumayya Athmani Hassan vs Paul Masinde Simidi & another
    [2019] eKLR
  • Kenya Builders & Concrete Company Ltd Vs National Government Constituency Development Fund Committee Embakasi South & Another
    (2017) eKLR
  • Garder General Trading Ltd Vs County government of Kilifi Department of Land, Housing & physical Planning and Another
    (2018) eKLR
  • Margaret Bashforth Vs Woburn Estate Ltd & Another
    (2021) eKLR
  • CNM Vs WMG
    (2018) eKLR
  • Communication Commission of Kenya Vs Royal Media Service Ltd & 5 Others
    Petition No. 14 of 2014
  • S vs Mhlungu
    1995 (3) SA 865 (CC)
  • COD and Ano Vs Nairobi City water & Sewerage Company
    Petition 419 of 2015 (2015) eKLR
  • Martin Lemaiyan Mokoosio & another Vs Reshmapraful Chandra Vadera & Another
    Petition 13 of 2020
  • Geoffrey Muthiga Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others
    (2015) eKLR
Jurisdiction invoked
Articles 35, 42 and 70 of the Constitution as invoked by the Petitioners; jurisdiction of the Environment and Land Court over the petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Valentine Odhiambo & 2 others v HF Development & Investment Ltd & another [2021] KEELC 392 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/392/eng@2021-12-15

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