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ELCOtherNot stated in the judgment (a constitutional petition filed at Meru)· [2021] KEELC 4444 (KLR)

John Mark Kirimi v Inspector General of Police & 4 others [2021] KEELC 4444 (KLR)

Environment and Land Court of Kenya
10 February 2021
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a landowner's constitutional petition, warning that private land disputes belong in civil suits, not constitutional litigation.

What this practically means

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Executive summary

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The petitioner/applicant, John Mark Kirimi, moved the Environment and Land Court at Meru by notice of motion dated 6.10.2020 seeking stay of proceedings in three active suits before the Nkubu magistrate's court (Nkubu ELC Nos. 51 of 2020, 52 of 2020 and 53 of 2017), their transfer to and consolidation with his constitutional petition, temporary injunctions restraining the 3rd to 5th respondents from trespassing on or constructing on parcel Nkuene/Taita/1082, and enforcement by the County Police Commander. He contended the suits involved the same parties and subject matter arising from subdivision of parent parcel Nkuene/Taita/349, valued above Ksh. 20 million, beyond the magistrates' pecuniary jurisdiction, and that exparte injunctions had been obtained against him, leading to his eviction on 4.9.2020. The 3rd respondent described a boundary dispute; the 4th and 5th respondents produced title deeds and accused the applicant of re-litigating determined matters. Justice Lucy N. Mbugua held that the injunction prayers were designed to scuttle existing orders and reverse the applicant's eviction; a constitutional petition is not a substitute for review or appeal. Complaints about service raised no constitutional issue. The jurisdictional objection should be raised before the trial court. Applying cited authority, the court discouraged dressing private land-ownership disputes as constitutional petitions. The application was dismissed with costs to the 3rd to 5th respondents, and the entire petition was struck out with no orders as to costs, since responses to the petition had not yet been filed.

Key legal issues

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01

Whether the applicant could use a constitutional petition to stay, transfer and consolidate pending magistrate's court suits and reverse injunctions issued therein

Holding

The application was unmerited; the orders sought were meant to scuttle existing injunctions and reverse an eviction, and a constitutional petition is not a vehicle for review or appeal of subordinate court orders.

Reasoning

The court found that the injunction prayers targeted orders already issued in Nkubu ELC Nos. 51 and 52 of 2020, under which the applicant had been evicted. Complaints about exparte orders and service were not constitutional issues and belonged on appeal or review. The three Nkubu suits were active, and ownership claims should be determined there.

p. 3
02

Whether the matters raised met the threshold of a constitutional question

Holding

They did not; the disputes were essentially private land/boundary ownership disputes for the pending suits.

Reasoning

The court held that not every issue meets the threshold of a constitutional question and that the mechanism of constitutional litigation is not available for every claim. Relying on authority, it discouraged converting private property ownership disputes into constitutional rights enforcement applications where statutory and civil mechanisms exist.

p. 3
03

Whether the magistrate's court lacked pecuniary jurisdiction because the land was valued above Ksh. 20 million

Holding

That objection should be raised before the trial court, not resolved in this petition.

Reasoning

The court found the valuation report a red herring, noting the suit ELC 53 of 2017 originated in 1995 and questioning when the applicant first valued the land at over Ksh. 20 million. It held that it is for the magistrate's court itself to determine whether it should down its tools on a jurisdictional challenge.

p. 3

Legal principles established

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  • Constitutional petitions cannot be used to reverse or review interim orders of a subordinate court; a petition is not a substitute for review or appeal.
  • Private disputes over ownership of property requiring prior determination should be resolved through the statutory/civil mechanisms rather than through constitutional petitions.
  • Courts have inherent power to strike out matters dressed as constitutional petitions that are plainly frivolous, vexatious or an abuse of process.

Court orders

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  1. 1.The application dated 6.10.2020 is dismissed with costs to the 3rd to 5th respondents
  2. 2.The entire suit (the constitutional petition) is struck out with no orders as to costs, as responses to the petition had not yet been filed

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 159(2)(b), 165(6), 40
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3, 3A, 6, 18, 63(e)
  • Civil Procedure Rules 2010Order 40; Order 51 rule 1; Order 21 rule 1

Cases cited (5)

  • Abdullah Mangi Mohammed vs Lazarus Beja & 5 others
    (2012) eKLR
  • Anne Wawuda & 3 Others vs Kenya Railways Corporation & another
    (2015) EKLR
  • Kariuki & others vs Dawa Pharmaceuticals company Limited & others
    (2007) E.A 235
  • Annarita Karimi Njeru vs Republic
    1979 eKLR
  • Nation Media Group Ltd vs Attorney General
    (2017) eKLR
Jurisdiction invoked
Articles 159(2)(b) and 165(6) of the Constitution of Kenya 2010; Sections 1A, 1B, 3, 3A, 6, 18 and 63(e) of the Civil Procedure Act; Order 40 & 51 rule 1 of the Civil Procedure Rules 2010

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, "John Mark Kirimi v Inspector General of Police & 4 others [2021] KEELC 4444 (KLR)", Case Analysis (2021). Not stated in the judgment (a constitutional petition filed at Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4444/eng@2021-02-10

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