Khamasi Juma Zaharo & another v Cannon Assurance Compnay Limited & 4 others [2022] KEELC 1243 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection
The objection was properly raised as pure points of law fit for determination at the preliminary stage
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.
Pleading with reasonable precision
The Petition failed the Anarita Karimi/Mumo Matemu threshold; particulars of the alleged violations were not provided
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.
Doctrine of constitutional avoidance
The claim, being essentially breach of contract over land, was not a proper constitutional issue
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.
Abuse of court process
The Petition was an abuse of process as a disguised civil land dispute
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 14th June 2019 and filed on 18th June 2019 raised by the 1st Respondent is allowed
- 2.The Petition dated 2nd May 2021 is dismissed
- 3.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.