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ELCStruck OutELC Petition No. 9 of 2021 (Thika)· [2022] KEELC 1265 (KLR)

Misheck Kariuki Gichuru v Inspector General of Police & 5 others [2022] KEELC 1265 (KLR)

Environment and Land Court
16 February 2022
BEB M Eboso
3,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a petition asking it to force production of documents in an ongoing land trial, ruling the trial court itself is the right forum.

What this practically means

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Executive summary

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The petitioner, acting under a power of attorney from Veronica Ngithi Muiruri, the alleged proprietor of Ruiru/Ruiru East Block 1/1407, petitioned the Environment and Land Court at Thika alleging that land records had been falsified and that the police and DPP had failed to produce or act on an investigation file. He sought declarations of unconstitutionality against the Land Registrar, the police and the DPP, a declaration that two respondents failed the integrity test, and a mandatory order compelling production of the original or reconstructed investigation file. The 4th respondent (DPP) filed a preliminary objection contending lack of jurisdiction, that the petition disguised a civil dispute as a constitutional one, and that it impermissibly sought to direct criminal investigations; the Attorney General supported it on behalf of the other respondents. The court framed two issues: whether it was properly seized of jurisdiction given the pending Ruiru SPMC E & L Case No. 103 of 2019, and whether the petition was an abuse of process. Holding that the ELC's bill-of-rights jurisdiction extends only to matters relating to the environment and land, and that an access-to-information claim belongs to the High Court, and that the proper mechanism for compelling production of documents in the ongoing trial lies before the trial court itself, the court found the petition misconceived and an abuse of process. The petition was struck out with no order as to costs, with liberty to move the trial court for production orders.

Key legal issues

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01

Jurisdiction of the ELC over the petition

Holding

The court lacks jurisdiction; the gravamen of the petition is access to information/production of evidence and integrity questions not properly before the ELC, and the matter is best ventilated in the trial court

Reasoning

The petition is tied to the pending Ruiru SPMC land case; the reliefs sought (production of an investigation file and land records) fall under the compellability and production frameworks of the Civil Procedure Rules, Evidence Act and Magistrates' Courts Act. If purely an access-to-information claim it belongs to the High Court under Article 165(3)(b). The ELC therefore is not the proper forum.

p. 4
02

Abuse of court process

Holding

The petition is an abuse of process because it seeks declarations on issues pending in the magistrate court and duplicates available mechanisms for compelling production of documents

Reasoning

Questions about altered land records and the contents of the police file are pending before the trial court, which can summon witnesses and punish contempt under Section 10 of the Magistrates' Courts Act. Instituting a parallel constitutional petition to obtain evidence for the ongoing suit is an abuse and amounts to forum shopping to derail the trial.

p. 4

Legal principles established

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  • The ELC has jurisdiction over bill of rights questions only in so far as they relate to the environment and the use, occupation and title to land; other bill of rights questions fall to the High Court under Article 165(3)(b)
  • A litigant seeking production of documents in an ongoing trial should invoke the trial court's powers (including contempt powers under Section 10 of the Magistrates' Courts Act) rather than institute a fresh constitutional petition
  • A petition seeking declarations on questions pending determination in a trial court is an abuse of the process of the court

Court orders

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  1. 1.The petition is struck out
  2. 2.The donor is at liberty to move the trial court appropriately for orders compelling the relevant parties to produce documents in the trial court
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35, 40, 75, 157(4), 157(10), 162, 165(3)(b), 165(5), 244(a),(b),(d), 245(2)(b), 48
  • Civil Procedure RulesCompellability and production of documents
  • Evidence ActProduction of documents
  • Magistrate Court Act (Magistrates' Courts Act)Section 10

Cases cited (4)

  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); jurisdiction contested under Articles 165 and 157

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, "Misheck Kariuki Gichuru v Inspector General of Police & 5 others [2022] KEELC 1265 (KLR)", Case Analysis (2022). ELC Petition No. 9 of 2021 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1265/eng@2022-02-16

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