Commission for Human Rights and Justice v Land Settlement Board of Trustees & 5 others [2021] KEELC 4003 (KLR)

The court restated the Anarita Karimi Njeru requirements: a petitioner must specify the Bill of Rights provisions violated, the particulars of the violations, and how the respondent infringed them. The petitioner cited Articles 1, 2, 3 and 10 without showing how a land ownership dispute threatened them, and failed to give factual or evidential basis for the alleged violation of Article 40.

Relying on Okai v Telkom and Uhuru Muigai Kenyatta, the court held that where a clear remedy exists in civil law or under the Land Act, constitutional relief should not be sought absent a special feature. The petitioner sought declaratory reliefs available in a civil court over ownership of the suit property, elevating a pure civil dispute into a constitutional petition - the epitome of abuse of process.

The court perused the ELC 15 of 2017 file and found the same suit property and the same fundamental issue of ownership. The 4th respondent was the plaintiff there and the matter was advertised for interested parties to join; the Nguu Tatu residents could have joined. The suit therefore offended the sub-judice rule, which goes to the core of the rule of law.

Article 22 allows 'a person' to sue, and Article 260 defines person to include an incorporated or unincorporated body. Rule 4 of the Practice and Procedure Rules, 2013 permits suits in the public interest or in the interest of a group. Section 3(3) of the Trustees (Perpetual Succession) Act makes registered entities body corporates. Any evidential deficiency could be cured by amendment under Rule 18.