Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 08/06/2021 (Kitale)· [2022] KEELC 288 (KLR)

John Wamalwa Wamare v Saboti Land Disputes Tribunal & 3 others [2022] KEELC 288 (KLR)

Environment and Land Court
6 April 2022
3,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The Kitale Environment and Land Court dismissed a landowner's constitutional petition challenging a lands tribunal's award because he pleaded no specific rights violations.

What this practically means

#

Executive summary

#
The Petitioner, registered owner of TRANS NZOIA/CHEMI CHEMI/102, petitioned the Environment and Land Court at Kitale seeking certiorari to quash a decision of the Saboti Lands Dispute Tribunal and a declaration that the Chief Magistrate's Court at Kitale (Land Case No. 18 of 2002) had acted nullity in adopting it. The Tribunal had awarded the 3rd Respondent two acres of the Petitioner's parcel on the basis of a sale chain through one Vincent Kusasia, and the award was adopted as a decree in 2002. The Petitioner claimed violations of Articles 40, 47 and 73 of the Constitution, arguing inter alia that the Tribunal acted ultra vires Section 3(1) of the Land Disputes Tribunal Act (repealed) by determining ownership questions, and that he was never notified of the decision, which he learned of only in May 2021. The Respondents opposed, contending the petition was a disguised appeal, defeated by laches and imprecise pleading. The court framed three issues. First, it held that Article 23(3)(f) permits a court to grant judicial review orders in a constitutional petition, so the forum objection failed. Second, applying Anarita Karimi Njeru as affirmed in Mumo Matemu, it found no violation demonstrated: the Tribunal heard the Petitioner and gave reasons, adoption of the award was lawful, and the Article 40 complaint was really a challenge to the Tribunal's procedure and merits requiring judicial review or appeal rather than a petition. Third, the petition was dismissed with costs to the 1st, 2nd and 4th Respondents. The 3rd Respondent filed no pleadings.

Key legal issues

#
01

Availability of prerogative writs in a constitutional petition

Holding

Certiorari and other judicial review orders can be granted in a constitutional petition by virtue of Article 23(3)(f).

Reasoning

The court held that Article 23(3)(f) expressly empowers courts adjudicating Bill of Rights petitions to grant judicial review orders. Where a party raises violation, threat or infringement of a constitutional right in relation to land and environment, the ELC is properly seized and may grant prerogative writs if the petitioner succeeds. The Respondents' objection to forum was therefore misplaced.

p. 3
02

Whether Articles 47 and 73 were violated

Holding

No violation of Article 47 (fair administrative action) or Article 73 (leadership and integrity) was established.

Reasoning

The Tribunal heard the Petitioner, gave reasons for its determination, and the award was lawfully adopted by the Chief Magistrate's Court. The Petitioner did not demonstrate specifically how Article 47 was breached, merely asserting violation. Article 73 on responsibilities of leadership was found irrelevant to the Petition and no breach of it was shown.

p. 4
03

Whether Article 40 (property rights) was infringed

Holding

No infringement of Article 40; the complaint went to the Tribunal's procedure and merits, not a constitutional deprivation.

Reasoning

The Petitioner remained the lawful owner; the Tribunal merely ordered transfer of land sold to the 3rd Respondent through the vendor. Article 40(1) rights are not absolute and may be limited under Article 24. The Petitioner's real grievance was dissatisfaction with the Tribunal's decision and its jurisdiction, which required judicial review or appeal, not a constitutional petition.

p. 5
04

Adequacy of pleadings under Anarita Karimi Njeru

Holding

The Petition failed to plead violations with the requisite precision, justifying dismissal.

Reasoning

Relying on Anarita Karimi Njeru as affirmed in Mumo Matemu, the court emphasised that precision in pleading constitutional violations is essential; the Petitioner invited the court to speculate on how his rights were violated. He particularised neither the deprivation under Article 40 nor the procedural unfairness under Article 47 with the necessary reasonable degree of precision.

p. 5

Legal principles established

#
  • A court hearing a constitutional petition under Article 22 may grant judicial review orders under Article 23(3)(f), so prerogative writs are available in a constitutional petition.
  • A constitutional petitioner must plead with reasonable precision the constitutional provisions infringed and the manner of infringement (Anarita Karimi Njeru principle).
  • The right to property under Article 40 is not absolute and may be limited under Article 24.

Court orders

#
  1. 1.The Petition dated 08/06/2021 was dismissed
  2. 2.Costs awarded to the 1st, 2nd and 4th Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(f), 24, 25, 40, 47, 73
  • Land Disputes Tribunal ActSection 3(1); Section 8
  • Registered Land Act (repealed)Chapter 300
  • Land Registration ActAct No. 3 of 2012

Cases cited (5)

  • M'Marete -vs- Republic & 3 others
    (2004) eKLR
  • Wellington Nzioka Kioko -vs- Attorney General
    [2018] eKLR
  • Anarita Karimi Njeru -vs- Republic
    [1976-80] KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & others
    [2013] eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
Jurisdiction invoked
Articles 22, 23(3)(f) and 162(2) of the Constitution (jurisdiction to enforce the Bill of Rights and grant judicial review orders in land and environment disputes)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Wamalwa Wamare v Saboti Land Disputes Tribunal & 3 others [2022] KEELC 288 (KLR)", Case Analysis (2022). Petition dated 08/06/2021 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/288/eng@2022-04-06

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