Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition dated 7th June, 2021· [2022] KEELC 1072 (KLR)

Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega ( Interested party) [2022] KEELC 1072 (KLR)

Environment and Land Court of Kenya
1 March 2022
DOD. O. Ohungo
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Landowners who rushed to the Constitution instead of using ordinary appeal and review procedures lost their case because statutory remedies already existed.

What this practically means

#

Executive summary

#
The petitioners, joint registered proprietors of L.R. Wanga/Koyonzo/1065 (comprised in LR Nos. Wanga/Koyonzo/1225 and 1226), challenged orders issued by the first respondent in Kakamega CMCC No. 626 of 1990. They claimed that eviction orders of 22nd May 2007 lapsed on 22nd May 2019 under the Limitation of Actions Act, and that the first respondent's orders of 17th March 2021 purporting to reinstate and enforce them were issued without service or a hearing, contrary to Articles 40, 47, 48 and 50 of the Constitution. They sought declarations of unconstitutionality, a permanent injunction, certiorari quashing the reinstatement orders, general damages, and special damages of KShs. 7,527,600/=. The second and third respondents filed a preliminary objection arguing, among other grounds, constitutional avoidance, res judicata, and that the petition was an appeal against subordinate court orders through the back door. The court, addressing jurisdiction first, applied the doctrine of constitutional avoidance as articulated by the Court of Appeal and Supreme Court: where ample statutory remedies exist, a litigant must pursue them rather than found a cause of action directly on the Constitution. Complaints about want of jurisdiction, lack of service, lapse of orders, or entitlement by adverse possession could all be raised through appeals, setting aside, review, or adverse-possession proceedings under the Civil Procedure Act and Limitation of Actions Act. The court held it lacked jurisdiction and struck out the petition with costs to the respondents and interested party. Only the constitutional avoidance ground was determined; the other objection grounds were not considered.

Key legal issues

#
01

Whether the petition fell within the jurisdiction of the constitutional court

Holding

The petition was struck out because the doctrine of constitutional avoidance divested the constitutional court of jurisdiction; the issues raised could be addressed through ordinary statutory avenues.

Reasoning

The petitioners' complaints (lack of service, want of jurisdiction, lapse of orders under the Limitation of Actions Act, adverse possession) were all rooted in orders made in Kakamega CMCC No. 626 of 1990. Validity of those orders had to be determined before a rights violation could arise. Adequate remedies existed via appeal, setting aside, review and adverse-possession suits under the Civil Procedure Act and Limitation of Actions Act.

p. 4

Legal principles established

#
  • Where ample statutory avenues exist for resolution of a dispute, a constitutional court will defer to those statutory options under the doctrine of constitutional avoidance
  • A court's jurisdiction flows from the Constitution or legislation and cannot exceed what is conferred by law
  • A suit filed in a court without jurisdiction is dead on arrival and cannot be remedied

Court orders

#
  1. 1.The petition herein is struck out with costs to the respondents and interested party

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 1(3)(c), 2(1), 3(1), 10(1)(b), 19, 20, 21(1), 22, 23(1) & (3), 25(c), 27(1), 40, 47, 48, 50, 60(1)(b), 61(2), 64(a), 159, 160, 165(1), 169(1)(a), 258, 259
  • Limitation of Actions Act
  • Civil Procedure Act
  • Evidence Act

Cases cited (9)

  • C N M v W M G
    [2018] eKLR
  • Philip Muchiri Mugo v Mbeu Kithekwa
    [2015] eKLR
  • Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others
    [2014] eKLR
  • Bandari Investment Company Limited v National Police Service & others
    [2021] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    [2016] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Article 22 and Article 165 of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (22)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega ( Interested party) [2022] KEELC 1072 (KLR)", Case Analysis (2022). Petition dated 7th June, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1072/eng@2022-03-01

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