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ELCOtherNot stated in the judgment as provided· [2021] KEELC 1706 (KLR)

Joyce Chepkorir Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another [2021] KEELC 1706 (KLR)

Environment and Land Court
7 October 2021
MOM.C. Oundo
3,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can sue a private individual or company for violating your constitutional rights, not just the government.

What this practically means

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Executive summary

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The Petitioner filed a Petition on 24th September 2019 seeking the cost of demolition and reconstruction of a new house, general damages and costs. She alleged that the Respondents, tasked in 2012 with rehabilitating and constructing the Londiani-Fortenan road C35, used explosives in blasting rocks, causing severe structural damage to her three-bedroomed residential house on parcel Block 9/1723 (Jagoror) 244, approximately 200m from the blasting site, rendering it uninhabitable and violating her rights under Articles 40(1), 42, 69 and 70 of the Constitution. The 2nd Respondent filed a Notice of Preliminary Objection contending that Bill of Rights claims cannot be brought by one private individual against another, that the claim sounded in tort and belonged in an ordinary civil suit, and that there was misjoinder. The 1st Respondent filed Grounds of Opposition asserting the claim was time-barred, that the Petitioner did not prove ownership of the property or the existence of the house, and that documents were contradictory and manufactured. The court framed two issues: whether a constitutional petition can be lodged between two private persons, and whether the preliminary objection should be upheld. Relying on Article 3(1) and 19(1) of the Constitution and the Court of Appeal decision in Moi Education Centre Co. Ltd v William Musembi, the court held that the Bill of Rights applies horizontally and that a petition may lie against a private person. Applying Mukisa Biscuits, it found that the ownership, existence of the house and limitation questions required ascertainment of facts and were therefore not pure points of law. The preliminary objection and grounds of opposition were dismissed with costs to the Petitioner, leaving the Petition to proceed to full hearing.

Key legal issues

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01

Whether a constitutional petition may be brought against a private individual

Holding

Yes - the Constitution contemplates horizontal application of the Bill of Rights

Reasoning

Article 3(1) obliges every person to respect, uphold and defend the Constitution, and Article 19(1) states the Bill of Rights binds all state organs and all persons. These provisions are justiciable. The Court of Appeal in Moi Education Centre held the Bill of Rights applies vertically against the state and horizontally against private persons, so a claim for violation of a constitutional right can in appropriate cases be brought against a private individual.

p. 4
02

Whether the preliminary objection and grounds of opposition ought to be upheld

Holding

No - the grounds raised required ascertainment of facts, so they were not pure points of law

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law. Questions of the Petitioner's ownership of Block 9/1723 (Jagoror) 244, whether the house existed prior to the Bill of Quantities, and whether the claim was founded in tort so as to attract limitation, all required factual examination. The objection therefore failed and was dismissed with costs.

p. 5

Legal principles established

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  • The Bill of Rights applies horizontally; a constitutional petition may be lodged between two private persons
  • A preliminary objection must raise a pure point of law on assumed pleaded facts, with no facts to be ascertained

Court orders

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  1. 1.Dismissal of the 2nd Respondent's Notice of Preliminary Objection dated 13th October 2020
  2. 2.Dismissal of the 1st Respondent's Grounds of Opposition dated 16th November 2020
  3. 3.Costs to the Petitioner

Authorities

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Legislation

  • Constitution of KenyaArticle 3(1)
  • Constitution of KenyaArticle 19(1)
  • Constitution of KenyaArticle 22
  • Constitution of KenyaArticle 40(1), 42, 69, 70(1) and (2)
  • Constitution of KenyaArticle 159
  • Evidence ActSections 107 and 109
  • Mutunga RulesRules 4 and 5(b)
  • Limitation of Actions ActNot specified

Cases cited (9)

  • Nicholas Kiptoo Arap Koriri Salat vs Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another
    [2016] eKLR
  • Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission
    Nairobi HCCP No. 1 of 2010
  • Silla Muhia Kinyanjui & 2 Others vs Attorney General
    [2020] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA 696
  • Chrispinus Munyane Papa & another v National Environmental Authority & another
    [2020] eKLR
  • Moi Education Centre Co. Ltd v William Musembi & 16 Others
    [2017] eKLR
  • Quick Enterprises Ltd. vs. Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
Jurisdiction invoked
Article 22 of the Constitution of Kenya (enforcement of the Bill of Rights)

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, "Joyce Chepkorir Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another [2021] KEELC 1706 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1706/eng@2021-10-07

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