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ELCStruck OutConstitutional Petition No 1 of 2020· [2021] KEELC 4674 (KLR)

Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR)

Environment and Land Court
21 January 2021
JMJ M Mutungi
3,221 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land petition, confirming private contract disputes belong in civil courts, though the seller must refund the buyer's money.

What this practically means

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Executive summary

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The petitioner sued by constitutional petition seeking declaratory orders, specific performance, vacant possession and a permanent injunction to enforce an agreement of sale dated 2nd August 2012, under which the respondent agreed to sell her 8 acres out of land parcel Pokor/Keben/Kures/533 for Kshs.1,200,000/=. The land was registered in the name of the respondent's deceased father, and the sale occurred before confirmation of grant in Nakuru High Court Succession Cause No. 93 of 2013, in which Ndungu J on 16th March 2016 declared the sale 'without the force of law and a nullity'. The respondent raised a preliminary objection arguing the petition was a disguised appeal, res judicata, devoid of constitutional issues and an abuse of process. Applying the Mukisa Biscuit and Anarita Karimi Njeru/Mumo Matemo thresholds, Mutungi J upheld the objection: the petition pleaded a private commercial contract breach, not constitutional violations, and the null agreement conferred no right capable of constitutional enforcement. The petition was struck out as an abuse of process. However, because the respondent admitted receiving Kshs.1,185,000/= under the void transaction, the court ordered a refund free of interest within 30 days, failing which interest at court rates would run from the date of the ruling. No order for costs was made on the preliminary objection and the petition. The decision is a ruling on the objection, not a full trial on the merits.

Key legal issues

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01

Threshold for a valid preliminary objection

Holding

The grounds raised (defective petition, res judicata, absence of constitutional issues) are pure points of law and satisfy the Mukisa Biscuit test

Reasoning

The court adopted the classic Newbold P formulation: a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. The competency of the suit, res judicata and the existence of a constitutional issue are all questions of law proper for a preliminary objection.

p. 2
02

Whether the dispute disclosed constitutional violations

Holding

No - the dispute was an ordinary private commercial contract dispute, not a Bill of Rights matter

Reasoning

The petition sought enforcement of a private sale agreement. The court endorsed Chacha J, Lenaola J and Teitinnang, holding that the Bill of Rights should not be invoked in purely private civil disputes where ordinary remedies lie, and that doing so dilutes the sanctity of the Bill of Rights.

p. 4
03

Effect of the succession court ruling declaring the sale agreement a nullity

Holding

The agreement was a nullity ab initio under s.82(b)(ii) of the Law of Succession Act and conferred no enforceable interest; that finding, unappealed, binds the petitioner

Reasoning

Ndungu J in the succession cause had held the sale void because no confirmed grant existed when Zakayo purportedly sold estate land. The petitioner did not appeal. An illegal/null agreement could not found enforceable rights through a constitutional petition.

p. 3
04

Restitution for monies paid under an illegal agreement

Holding

The admitted Kshs.1,185,000/= paid by the petitioner must be refunded to avoid unjust enrichment

Reasoning

Although the petition failed, the respondent admitted receipt of Kshs.1,185,000/= and offered to refund it. The court declined to condone illegality in a manner that would unjustly enrich the respondent, who was the prime mover of the illegal transaction, and ordered refund within 30 days free of interest, failing which interest at court rates.

p. 4

Legal principles established

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  • A constitutional petition must set out with a degree of precision the petitioner's complaint, the provisions infringed and the manner of infringement
  • A null and illegal sale agreement confers no right capable of being violated or enforced by way of constitutional petition
  • Where an alternative remedy exists in the ordinary civil courts, a party ought not to invoke the constitutional jurisdiction to enforce a private commercial contract
  • A party may not be unjustly enriched out of an illegal transaction; monies paid under a nullity must be refunded

Court orders

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  1. 1.The respondent's preliminary objection is upheld and the constitutional petition is struck out
  2. 2.The respondent is ordered to refund Kshs.1,185,000/= to the petitioner free of any interest within 30 days from the date of the ruling
  3. 3.Failing payment within 30 days, the petitioner is entitled to recover the amount together with interest at court rates from the date of delivery of the ruling
  4. 4.No order for costs on the preliminary objection and the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 20, 27, 28, 40, 43, 47, 50; Article 165(3)(a)
  • Law of Succession ActCap 160, s.82(b)(ii)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Anarita Karimi Njeru -vs- The Republic
    (1979) eKLR
  • Mumo Matemo -vs- Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Abraham Kaisha Kanziku -vs- Governor of Central Bank & others
    (2006) eKLR
  • Godfrey Paul Okutoyi & others -vs- Habil Olaka & Another
    (2018) eKLR
  • Bernard Murage -vs- Fine Serve Africa Ltd & others
    (2015) eKLR
  • Patrick Mbau Karanja -vs- Kenyatta University
    (2012) eKLR
  • Francis Waithaka -vs- Kenyatta University
    Petition No. 633 of 2011
  • Teitinnang -vs- Ariong
    (1987) LRC (const.) 517
Jurisdiction invoked
Constitutional (Bill of Rights enforcement) jurisdiction of the High Court/ELC invoked by the Petitioner under Articles 20, 27, 28, 40, 43, 47 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR)", Case Analysis (2021). Constitutional Petition No 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4674/eng@2021-01-21

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