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ELCStruck OutPetition (re-amended, dated 22nd March 2017) - Constitutional Petition, Nairobi· [2022] KEELC 1122 (KLR)

Samuel Wamutu Waiganjo v Nairobi City County & 7 others [2022] KEELC 1122 (KLR)

High Court of Kenya
24 February 2022
LKL. Komingoi
4,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck out a Kshs.112 million land rights petition because the same ownership dispute was already pending in another court.

What this practically means

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Executive summary

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This is a first-instance constitutional petition decided by the High Court in Nairobi on 24th February 2022 (L. Komingoi, J). The Petitioner, registered proprietor of L.R.12243/2, sought a raft of reliefs: declarations that his rights under Articles 27, 39, 40, 43, 47 and 60 were violated; certiorari to quash the 2nd Respondent's May 2013 decision reverting L.R.3586/3 to its original status; prohibition, injunctions and mandamus compelling the Respondents to enforce subdivision conditions relating to access roads L.R.3586/3/2/1 and L.R.12243/2/1; and special damages of Kshs.112,005,642/=. The Petitioner alleged the 6th Respondent fenced off and obstructed the surrendered access road to Lang'ata Road, and that the state Respondents unlawfully cancelled the subdivision scheme without notice or alternative access. The 1st, 3rd, 4th, 5th, 6th and 8th Respondents opposed, principally arguing that ownership of L.R.3586/3 was in dispute in pending ELC No. 1180 of 2014 between the same parties, rendering the petition subjudice under Section 6 of the Civil Procedure Act. The court framed three issues: subjudice, infringement of rights, and entitlement to relief. It held that the petition was subjudice, applied the Supreme Court's statement of the subjudice rule in the Kenya National Commission on Human Rights case, and declined to delve into the constitutional rights allegations because the petition lacked the reasonable precision required by Anarita Karimi Njeru and Mumo Matemu. The petition was struck out for being subjudice with costs to the Respondents.

Key legal issues

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01

Whether the petition is subjudice

Holding

The petition is subjudice because the proprietary interest in L.R. No. 3586/3, its central subject, is pending in ELC 1180 of 2014 between the same parties.

Reasoning

It was not disputed that ownership of L.R. No. 3586/3 is before the court in ELC 1180 of 2014, in which the Petitioner and the 2nd to 6th Respondents are parties. The Petitioner filed this petition in 2015 knowing of that pending suit. The substance of both suits is the same subject matter, so Section 6 of the Civil Procedure Act bars this court from granting any orders here.

p. 6
02

Whether the Petitioner's constitutional rights were infringed

Holding

The court declined to determine the rights allegations because the petition was not drafted with reasonable precision.

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, a constitutional petition must plead with reasonable precision the provisions infringed and the manner of infringement. The court found the petition defective in this respect and therefore declined to delve into the allegations of violation of Articles 27, 39, 40, 43, 47 and 60.

p. 6

Legal principles established

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  • Section 6 of the Civil Procedure Act bars a court from granting orders in a suit whose matter directly and substantially in issue is pending in a previously instituted suit between the same parties.
  • The purpose of the subjudice rule is to prevent multiplicity of suits and conflicting decisions over the same subject matter.

Court orders

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  1. 1.The Petition is struck out for being subjudice.
  2. 2.Costs of the petition to the Respondents.
Jurisdiction invoked
Articles 22 and 23 of the Constitution of Kenya, 2010 (petition under Articles 27, 39, 40, 43, 47 and 60)

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, "Samuel Wamutu Waiganjo v Nairobi City County & 7 others [2022] KEELC 1122 (KLR)", Case Analysis (2022). Petition (re-amended, dated 22nd March 2017) - Constitutional Petition, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1122/eng@2022-02-24

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