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ELCStruck OutPetition dated 10th February 2021· [2021] KEELC 1286 (KLR)

Isaac Makokha Okere v Mumias Outgrowers Sacco Society Limited & 9 others [2021] KEELC 1286 (KLR)

Environment and Land Court
2 November 2021
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land dispute disguised as a constitutional petition was struck out because fraud claims belong in an ordinary civil suit, not the constitutional forum.

What this practically means

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Executive summary

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The petitioner, by a petition dated 10th February 2021, alleged that land registered in the names of five beneficiaries following 1978 succession proceedings over his late brother's parcel, South Wanga/Lureko/65, was fraudulently subdivided and registered in the names of the 1st to 7th respondents in collusion with the 8th and 9th respondents. He sought declarations that the subdivisions were ultra vires, null and void, cancellation of titles, reversion of the land, removal of structures, and costs, invoking his right to property and Article 47. The 5th respondent filed a notice of preliminary objection contending that the petition raised no bona fide constitutional issue, offended the doctrine of constitutional avoidance, could be addressed in an ordinary civil suit, and was an abuse of process, and that the petitioner lacked locus standi to litigate for deceased persons' estates. The 4th, 6th and 7th respondents filed a similar objection. The court, D. O. Ohungo J, framed two issues: validity of the objection and jurisdiction. Applying Mukisa Biscuit, he found the objection raised pure points of law. He held that although the court has jurisdiction under Article 162 and Section 13 of the Environment and Land Court Act over land-related constitutional claims, the petitioner's real grievance was fraud and collusion in land subdivision, remediable under Section 26 of the Land Registration Act in an ordinary suit. The petition therefore offended the doctrine of constitutional avoidance and was dead on arrival for want of jurisdiction. The petition was struck out with no order as to costs.

Key legal issues

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01

Validity of the preliminary objection

Holding

The seven grounds of the objection raise pure points of law determinable on the material on record, making it a valid preliminary objection.

Reasoning

Applying Mukisa Biscuit, the court held that whether a petition raises constitutional issues can be determined by merely examining the petition without receiving evidence. Since no facts needed to be ascertained and no judicial discretion was sought, the objection was a proper one worthy of consideration.

p. 3
02

Jurisdiction over the petition

Holding

The court lacks jurisdiction because the petition, founded on fraud and collusion in land subdivision and seeking cancellation of titles, offends the doctrine of constitutional avoidance.

Reasoning

Although the court has jurisdiction under Article 162 and Section 13 of the ELC Act to hear constitutional petitions on land matters, the petitioner's claim was essentially an ordinary land dispute dressed as a constitutional petition. Such claims lie in an ordinary suit under Section 26 of the Land Registration Act, and fraud must be pleaded and strictly proven in an ordinary suit, not via affidavit evidence.

p. 4
03

Suitability of constitutional petition for fraud claims

Holding

A constitutional petition is not the appropriate procedure for resolving allegations of fraud.

Reasoning

Fraud is a serious and contentious issue which must be pleaded, particularised and strictly proven through procedures under the Civil Procedure Act; a petition heard by affidavit evidence and submissions is not suitable for that purpose.

p. 4

Legal principles established

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  • A valid preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
  • The doctrine of constitutional avoidance deprives the constitutional court of jurisdiction where a dispute may be resolved through adequate statutory avenues in an ordinary suit.
  • A suit filed in a court devoid of jurisdiction is dead on arrival and cannot be remedied.

Court orders

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  1. 1.The petition herein is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Articles 42, 69 and 70
  • Constitution of Kenya, 2010Article 47
  • Environment and Land Court ActSection 13
  • Land Registration ActSection 26
  • Civil Procedure Actand rules made thereunder

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Isaac Makokha Okere v Mumias Outgrowers Sacco Society Limited & 9 others [2021] KEELC 1286 (KLR)", Case Analysis (2021). Petition dated 10th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1286/eng@2021-11-02

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