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ELCStruck OutNot stated in the judgment· [2021] KEELC 2827 (KLR)

Kenya Agricultural and Livestock Research Organization (KALRO) v Edison Sonje Taura & 3 others [2021] KEELC 2827 (KLR)

Environment and Land Court
17 June 2021
MSMunyao Sila
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, a state corporation established under the Kenya Agricultural and Livestock Research Act, sued five private individuals by constitutional petition filed on 23 July 2019, claiming that land parcel LR No. MN/III/1450, formerly owned by its predecessor KARI, was illegally subdivided and allocated to private persons in about 1995; that titles to three subdivisions were revoked by Gazette Notice in 2010; and that in December 2018 the respondents forcibly entered, occupied and vandalised the property. It sought declarations of ownership and trespass, a permanent injunction, vacant possession and general damages, pleading violations of Articles 62(1) and 40(3) of the Constitution. The court, having earlier directed the petitioner to show cause why the suit should not be struck out, held that the dispute was an ordinary civil claim in trespass against private individuals seeking purely private law remedies. Article 62 is merely definitional and Article 40(3) binds the State, not private persons, so no constitutional violation could be attributed to the respondents. Counsel for the petitioner sought conversion of the petition into a plaint, but the court declined, reasoning that conversion would leave unanswerable constitutional allegations in the pleadings and prejudice the respondents' procedural rights, including any counterclaim. Applying the Court of Appeal's guidance in Gabriel Mutava that constitutional litigation is not a panacea for all disputes, the court struck out the petition and made no order as to costs, leaving the petitioner free to institute fresh proceedings by plaint.

Key legal issues

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01

Whether the dispute was properly a constitutional petition

Holding

No - the suit is a simple civil claim in trespass seeking private law remedies against private individuals and should have been brought by plaint

Reasoning

The petitioner alleged trespass by private individuals and sought eviction, injunction and damages. The pleaded constitutional provisions were inapposite: Article 62 merely defines public land and Article 40(3) constrains the State, not individuals. The court invoked the Court of Appeal's admonition against dressing mundane civil disputes as constitutional litigation.

p. 2
02

Whether to strike out the petition or convert it to a plaint under Article 159(2)(d)

Holding

The court declined conversion and struck out the petition

Reasoning

Although the court has wide discretion to convert a petition into a plaint, guided by justice to the parties and Article 159(2)(d), conversion here would leave in the pleadings alleged constitutional violations that the respondents cannot properly answer, and would hamper any counterclaim. Substantive justice required the petitioner to recommence through correct procedure.

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Legal principles established

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  • A suit seeking purely private law remedies against private individuals should be commenced by plaint, not by constitutional petition; constitutional litigation is not a panacea for all disputes
  • Article 62 of the Constitution is a definitional provision describing what constitutes public land and cannot found a claim of violation against private individuals
  • Article 40(3) binds the State and cannot be violated by private individuals unconnected to the State

Court orders

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  1. 1.The constitutional petition is struck out
  2. 2.No orders as to costs - each party to bear own costs (court declined to award costs)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the petition; petitioner invoked Articles 62(1) and 40(3) of the Constitution

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, "Kenya Agricultural and Livestock Research Organization (KALRO) v Edison Sonje Taura & 3 others [2021] KEELC 2827 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2827/eng@2021-06-17

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