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ELCDismissedELC Petition No. 16 of 2019· [2021] KEELC 4401 (KLR)

Kennedy Onyango v Idime Enterprises & another [2021] KEELC 4401 (KLR)

Environment and Land Court
8 February 2021
CYC.K. Yano
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a landlord-tenant dispute about broken locks and seized goods belongs in ordinary civil courts, not a constitutional petition.

What this practically means

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Executive summary

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The petitioner, a tenant of the 2nd respondent at House Number 860, Bamburi Palestina Area, Mombasa, petitioned the Environment and Land Court alleging that the respondents violated his rights to access information (Article 35(1)(b)), privacy (Article 31(a) and (b)), property (Article 40(1)(a) and (b)) and dignity (Article 28) by failing to disclose any agency relationship between the respondents, and by forcibly breaking into his house on 27th June 2018, breaking the padlock, emptying the house of his goods and changing the locks. He sought declarations of violation, damages of Kshs.377,090.00 special and Kshs.6,000,000.00 general, and injunction against interference with his tenancy. The respondents denied the claims, asserting the petitioner was a chronic rent defaulter lawfully distressed under the Distress for Rent Act, and that the seized items were inventoried and returned. Only the petitioner filed submissions. Framing two issues - whether the petition raised a constitutional issue and whether the petitioner was entitled to the reliefs - the court held the dispute arose from a tenancy and an alleged unlawful distress for rent, falling squarely within private law. Relying on Bernard Murage, Uhuru Muigai Kenyatta and Re Application by Bahadur, the court held that where alternative statutory remedies exist, they should be pursued; the petitioner had himself filed Rent Restriction Tribunal Case No. 134 of 2018 and a burglary report at Kiembeni Police Post. Finding no violation proved, the court dismissed the petition with costs on 8th February 2021.

Key legal issues

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01

Whether the petition raises a constitutional issue

Holding

The petition does not raise a constitutional issue; it is a private law dispute arising from a tenancy and alleged unlawful distress for rent, for which statutory and ordinary civil remedies exist.

Reasoning

The court found the petition arose from a tenancy relationship and an alleged unlawful distress for rent. The petitioner had himself filed a claim before the Rent Restriction Tribunal and reported the matter to police as burglary. Relying on the Murage and Bahadur line of authority, the court held that where an alternative remedy under statutory law exists, it should be pursued, and private law claims should not be dressed as constitutional petitions.

p. 3
02

Whether the petitioner proved violation of his rights under Articles 35(1)(b), 31(a) and (b), 40(1)(a) and (b) and 28

Holding

The petitioner failed to demonstrate that his constitutional rights were violated or threatened with violation.

Reasoning

For a constitutional petition to succeed, the petitioner must demonstrate that the rights invoked were actually denied, violated or threatened. On the material on record, the court was not satisfied that any violation was made out, and accordingly dismissed the petition with costs.

p. 3

Legal principles established

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  • A constitutional petition must demonstrate actual or threatened violation of the rights invoked; where an alternative statutory remedy exists, it should be pursued first.
  • Private law disputes should not form the basis of constitutional petitions and should be resolved through ordinary litigation.
  • The Constitution is not a general substitute for normal procedures; claims capable of resolution under substantive law should be brought under that law.

Court orders

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  1. 1.The petition is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35(1)(b)
  • Constitution of Kenya, 2010Article 31(a) and (b)
  • Constitution of Kenya, 2010Article 40(1)(a) and (b)
  • Constitution of Kenya, 2010Article 28
  • Distress for Rent Actnot specified

Cases cited (6)

  • Bernard Murage -v- Fine Serve Africa Ltd & 3 Others
    (2015)eKLR
  • Uhuru Muigai Kenyatta -v- Nairobi Star Publications Limited
    (2013)eKLR
  • Re Application by Bahadur
    (1968)LR (cost) 297
  • MWK & Another -v- Attorney General & 3 Others
    (2017)eKLR
  • Mohamed Feizal & 19 Others -v- Henry Kaudie & 7 Others
    (2018)eKLR
  • Haco Industries
Jurisdiction invoked
Articles 28, 31(a) and (b), 35(1)(b) and 40(1)(a) and (b) of the Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Onyango v Idime Enterprises & another [2021] KEELC 4401 (KLR)", Case Analysis (2021). ELC Petition No. 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4401/eng@2021-02-08

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