Maureen Ochieng & 4 others v Nairobi City County Governmen &4 others; Anthony Tom Oluoch & 1001 others (Interested Parties) [2021] KEELC 1053 (KLR)
The bottom line
#Nairobi residents lost their challenge to a church's 2007 land allocation because the 2010 Constitution does not apply to pre-2010 deals, and fraud claims need a civil suit.
What this practically means
#Executive summary
#Key legal issues
#Retroactivity of the Constitution of Kenya, 2010
The 2010 Constitution and the statutes relied on (National Land Commission Act, Land Act, Fair Administrative Action Act, Community Land Act) did not apply to the 2007 allocation.
The court relied on Samuel Kamau Macharia v Kenya Commercial Bank on non-retroactivity. The suit property was allocated on 14th June 2007, before promulgation of the 2010 Constitution and before the cited statutes were enacted. The Petitioners did not persuade the court that the Articles cited were retroactive, so the validity of the allocation must be assessed under the old Constitution, Registration of Titles Act, Government Lands Act and Local Government Act, none of which were cited.
Precision in constitutional pleadings and propriety of the petition as a vehicle
The petition lacked precision, mixed private rights claims with public rights, confused public land with community land, and should have been brought as a civil suit with oral evidence.
Applying Anarita Karimi Njeru and Mumo Matemu, constitutional violations must be pleaded with reasonable precision. The Petitioners cited Articles without explaining their relevance. The core dispute was the validity of the Church's title, requiring evidence on fraud and compliance with statutory allocation procedures under repealed statutes, which could not be resolved on affidavit evidence and submissions.
Whether constitutional rights were violated
No violation or threatened violation established; the Petitioners proved nothing beyond bare allegations.
The burden was on the Petitioners to show the Council did not comply with the law in 2007. They placed no evidence that the suit property was reserved for a hospital, market, NYS centre, nursery school, public toilets or social hall; the correspondence and internal memos produced had little probative value. No evidence of fraud was adduced and no proprietary interest was established.
Setting aside the consent order in ELC No. 288 of 2016
The proper course was an application in the civil suit itself, or a fresh suit; not a constitutional petition.
The Petitioners gave no convincing reasons for not moving the court in the civil suit. They could have applied to set aside the consent order, sought joinder as defendants, and filed a counter-claim against the Church's title, or alternatively filed a fresh suit. A constitutional petition is unnecessary to set aside an order of a competent court.
Costs
Each party to bear its own costs, given that the petition was to a large extent public interest litigation.
Although the petition was dismissed, the court treated it as largely public interest litigation and declined to award costs to any party.
Legal principles established
#- The Constitution of Kenya, 2010 is not retroactive save for Articles intended to operate retroactively; disputes over allocations made before its promulgation must be determined under the law in force at the time.
- Constitutional petitions raising contested factual issues such as fraud should not be used as a substitute for a civil suit where oral evidence can be adduced.
- A party aggrieved by a consent order in a separate suit should apply in that suit to set it aside rather than file a constitutional petition.
Court orders
#- 1.Finding that the Petitioners have not established violation or threatened violation of their constitutional rights.
- 2.Finding that the issue of the validity of the title held by the 2nd to 4th Respondents in respect of the suit property and whether it should be nullified cannot be determined in these proceedings.
- 3.The court declines to grant the reliefs sought in the petition.
- 4.Each party shall bear its own costs.
- Jurisdiction invoked
- Articles 1, 3, 10, 19(1), (2) and (3), 20(1), (2) & (3), 22, 23, 27, 28, 40, 43, 47, 61, 62, 174(1)(c) & (d), 184(1)(c) and 258(1) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maureen Ochieng & 4 others v Nairobi City County Governmen &4 others; Anthony Tom Oluoch & 1001 others (Interested Parties) [2021] KEELC 1053 (KLR)", Case Analysis (2021). Petition filed 7th May 2018, amended 17th July 2020 (ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1053/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.