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ELCDismissedPetition dated 28th January 2021 (Nakuru)· [2021] KEELC 2398 (KLR)

Stephen Ranji, Peter Mwangi, James Kiragu, Simon Kamau King’ori, Simon Ngigi Ngugi, Peter Gatuma, John Karomo & John Macharia Mugane (Suing on their own behalf and on behalf of BLOCK 16 SELF HELP GROUP) v Joseph Kihara Muithukia, Patrick Ndegwa Munyua & District Land Registrar, Nakuru (Environment & Land Case E01 of 2021) [2021] KEELC 2398 (KLR)

Environment and Land Court
28 July 2021
2,928 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed a land dispute filed as a constitutional petition because it repeated an already-decided case and lacked legal precision.

What this practically means

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Executive summary

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The petitioners, members of Block 16 Self Help Group, petitioned the Environment and Land Court at Nakuru seeking declarations that land parcels Nakuru Municipality Block 16/729 and 730, registered in the names of the 1st and 2nd respondents, were public land forming part of a road reserve, and sought cancellation of the respondents' leases, vacant possession and related orders so the land could be used as a police post. They relied on approvals from the Municipal Council of Nakuru in 2011 permitting a temporary police post on the road reserve. The respondents opposed the petition through preliminary objections and replying affidavits, contending lack of locus standi, res judicata by virtue of Nakuru CMCC No. 551 of 2011 - in which the petitioners' chairman, Thomas Njenga Ngotho, had litigated the identical claim and a permanent injunction was issued upholding the respondents' titles - and want of specificity. The court, citing the Supreme Court's restatement of the res judicata doctrine in Kenya Commercial Bank v Muiri Coffee Estates, found the parties were litigating under the same title and the issues substantially identical, and held the petition res judicata. Applying the Anarita Karimi Njeru threshold as restated in Mumo Matemu, the court further found the petition merely cited constitutional articles without particulars, that the petitioners had not demonstrated crystallised constitutional rights, and that the petition was an abuse of process, being a civil land dispute dressed as a constitutional petition. The petition was dismissed with costs to the respondents on 28th July 2021.

Key legal issues

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01

Res judicata

Holding

The petition is res judicata as it raises substantially the same issues as Nakuru CMCC No. 551 of 2011, in which Thomas Njenga Ngotho, the petitioners' chairman, represented their interests

Reasoning

The court applied the KCB v Muiri Coffee Estates principles, examining whether the parties were the same or litigating under the same title and whether the previous case was decided by a competent court. Thomas Ngotho, chairman of the Self Help Group, litigated the identical claim (that the parcels were public land/road reserve allocated for a police post) and the same documents were exhibited; the subordinate court upheld the respondents' titles and issued a permanent injunction.

p. 4
02

Specificity of constitutional petitions

Holding

The petition failed the Anarita Karimi Njeru threshold as it merely cited constitutional articles without particulars of violation

Reasoning

Relying on Anarita Karimi Njeru and Mumo Matemu, the court held that petitioners must plead with reasonable precision the provisions violated and the manner of violation. The petition merely listed Articles 27, 28, 29, 40, 47, 48 and 50 without particulars, and the underlying facts had already been determined in the subordinate court suit.

p. 4
03

Abuse of constitutional process

Holding

The petition was an indirect assault on the subordinate court's decision and an abuse of the constitutional jurisdiction, being essentially a civil matter

Reasoning

The court endorsed the principle that parties improperly christen civil disputes as constitutional petitions. The proper forum for disputing title to land is the civil court, and using constitutional jurisdiction to circumvent an adverse judgment constitutes abuse of process.

p. 3

Legal principles established

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  • A constitutional petition must, with reasonable precision, identify the constitutional provisions alleged to have been violated and particulars of the infringement
  • Where an alternative remedy exists in the ordinary civil courts, a party ought not to invoke the constitutional jurisdiction

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 29, 40, 47, 48, 50
  • Repealed Constitution of KenyaSection 75

Cases cited (6)

  • Grays Jepkemoi Kiplagat vs Zakayo Chepkonga Cheruiyot
    (2021) eKLR
  • Godfrey Paul Okutoyi & others vs Habil Oloka & Another
    (2018) eKLR
  • Japheth Ogada Origa vs Vice Chancellor University of Nairobi & 2 others
    (2018) eKLR
  • Kenya Commercial Bank Ltd vs Muiri Coffee Estates Ltd & Another
    (2016) eKLR
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
Jurisdiction invoked
Constitutional petition jurisdiction (Articles 27, 28, 29, 40, 47, 48 and 50 of the Constitution invoked by petitioners)

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, "Stephen Ranji, Peter Mwangi, James Kiragu, Simon Kamau King’ori, Simon Ngigi Ngugi, Peter Gatuma, John Karomo & John Macharia Mugane (Suing on their own behalf and on behalf of BLOCK 16 SELF HELP GROUP) v Joseph Kihara Muithukia, Patrick Ndegwa Munyua & District Land Registrar, Nakuru (Environment & Land Case E01 of 2021) [2021] KEELC 2398 (KLR)", Case Analysis (2021). Petition dated 28th January 2021 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2398/eng@2021-07-28

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