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ELCStruck Outnot stated in judgment (Petition dated 2nd May 2021)· [2022] KEELC 1243 (KLR)

Khamasi Juma Zaharo & another v Cannon Assurance Compnay Limited & 4 others [2022] KEELC 1243 (KLR)

Environment and Land Court
23 February 2022
3,937 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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What this practically means

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Executive summary

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The 1st Respondent filed a Notice of Preliminary Objection dated 14th June 2019 challenging the competence of the Petitioners' constitutional Petition, which claimed ownership of 10 acres of Plot No. MN/III/13 Msumarini, Kilifi. The objection raised three grounds: failure to plead with reasonable precision as required by Rule 10(2) of the Mutunga Rules and the Anarita Karimi Njeru/Mumo Matemu line of authority; violation of the doctrine of constitutional avoidance as set out in Communication Commission of Kenya v Royal Media Services; and abuse of court process. After canvassing by written submissions, the court framed four issues and applied the Mukisa Biscuits test, holding the objection raised pure points of law properly determinable at the preliminary stage. On the merits of the objection, the court found that the cause of action was essentially breach of a settlement agreement brokered by the National Land Commission (the 2nd Respondent), under which the 1st Respondent was to settle 125 families and allocate five acres each to the two Petitioners. The Petition cited Articles 19, 20, 21, 22, 23, 40, 68 and 69 without particulars of the manner of infringement and thus failed the reasonable precision threshold. Applying the doctrine of constitutional avoidance, the court held the land and contract dispute was remediable by ordinary civil proceedings under the Law of Contract Act (Cap. 23), the Land Act and the Land Registration Act, and relying on Four Farms Limited v Agricultural Finance Corporation held that invoking constitutional jurisdiction in the face of an adequate parallel remedy was an abuse of process. The court allowed the preliminary objection, dismissed the Petition dated 2nd May 2021, and directed each party to bear its own costs.

Key legal issues

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01

Validity of the preliminary objection

Holding

The objection was properly raised as pure points of law fit for determination at the preliminary stage

Reasoning

Applying the Mukisa Biscuits test as restated in Attorney General & Another v Andrew Mwaura Githinji, the court found the issues raised serious and pure issues of law, not fanciful or remote, and not requiring ascertainment of facts or exercise of discretion, so they could properly be determined before full trial.

p. 3
02

Pleading with reasonable precision

Holding

The Petition failed the Anarita Karimi/Mumo Matemu threshold; particulars of the alleged violations were not provided

Reasoning

Although the Petition cited Articles 19, 20, 21, 22, 23, 40, 68 and 69, it provided no particulars of the manner of infringement. For instance, Article 40 on the right to property was mentioned without evidence or factual basis of violation. The court was not satisfied the Petitioners met the threshold of reasonable precision.

p. 4
03

Doctrine of constitutional avoidance

Holding

The claim, being essentially breach of contract over land, was not a proper constitutional issue

Reasoning

The pith and substance of the Petition was breach of a settlement agreement governed by the Law of Contract Act (Cap. 23). Where a dispute is determinable under another area of law it should be determined there, leaving pure constitutional issues to constitutional jurisdiction. The court relied on Jorum Kabiru Mwangi and Uhuru Muigai Kenyatta v Nairobi Star Publications.

04

Abuse of court process

Holding

The Petition was an abuse of process as a disguised civil land dispute

Reasoning

Relying on Four Farms Limited v Agricultural Finance Corporation, the court held that where a parallel remedy exists, constitutional relief should not be sought unless the ordinary remedy is arguably inadequate. A civil claim would afford the Petitioners adequate redress; the laws of contract and land legislation prescribed clear redress procedures.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Constitutional petitions must plead with reasonable precision the provisions infringed and the manner of infringement
  • Where a dispute can be determined under another area of law, constitutional jurisdiction should not be invoked - doctrine of constitutional avoidance
  • Where a parallel civil remedy exists, constitutional relief should not be sought absent special features rendering the ordinary remedy inadequate

Court orders

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  1. 1.The Preliminary Objection dated 14th June 2019 and filed on 18th June 2019 raised by the 1st Respondent is allowed
  2. 2.The Petition dated 2nd May 2021 is dismissed
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 19, 20, 21, 22, 23, 40, 47, 67, 68, 69, 259(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules) 2013 (Mutunga Rules)Rule 10(2)(d)/(e)
  • Law of Contract Act (Laws of Contract), Cap. 23generally
  • Land ActNo. 6 of 2012
  • Land Registration Act2012

Cases cited (13)

  • Anarita Karimi Njeru v The Republic
    (1976-1980) eKLR; [1980] KLR 154; [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Communication Commission of Kenya v Royal Media Services Ltd & 5 others
    (2014) eKLR
  • Jorum Kabiru Mwangi & 2 Others v Co-Operative Bank of Kenya, Kawangware Branch
    (2016) eKLR
  • Northern Nomadic Disabled Person’s Organisation (Nondo) v Governor County Government of Garissa & another
    (2013) eKLR
  • Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya
    HCMA No. 13 of 2008
  • Peter Kyalo v Alfred Mutua, Governor, the County Government of Machakos & 6 others
    Petition No. 10 of 2018
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    [1969] E.A. 696
  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Thorp v Holdsworth
    (1886) 3 Ch. D 637 at 639
  • Uhuru Muigai Kenyatta v Nairobi Star Publications Limited
    [2013] eKLR
  • AG v S.K. Dutambala
    Cr. Appeal No. 37 of 1991
  • Four Farms Limited v Agricultural Finance Corporation
    (2014) eKLR
Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya 2010 (enforcement of Bill of Rights); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)

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, "Khamasi Juma Zaharo & another v Cannon Assurance Compnay Limited & 4 others [2022] KEELC 1243 (KLR)", Case Analysis (2022). not stated in judgment (Petition dated 2nd May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1243/eng@2022-02-23

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