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ELCDismissedNot stated in excerpt (ELC Petition, Meru)· [2022] KEELC 1404 (KLR)

Evangeline Karugwata Gikono v Joyce Nkuene Cypriano & another [2022] KEELC 1404 (KLR)

Environment and Land Court
16 February 2022
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a preliminary objection against a land-rights constitutional petition, confirming non-joinder of a party is rarely fatal.

What this practically means

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Executive summary

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The 1st and 2nd respondents raised a preliminary objection against a constitutional petition by an elderly petitioner concerning parcel L.R. Nkuene/Taita/1631, part of land originally gathered by her late father. They argued that as private citizens holding no public office they could not be sued for breach of constitutional rights, that the grievances were tortious and belonged in a normal suit, and that the petition was incompetent. The petitioner countered that the objection failed the Mukisa Biscuits threshold of a pure point of law and that the dispute engaged her rights to property, fair hearing, access to justice and non-discrimination. The court, applying Hassan Ali Joho, held that the objection raised matters of form and discretion rather than law: the respondents had not yet filed a response denying or admitting the pleaded facts, and non-joinder of the Land Registrar was not fatal given the court's wide powers under Rules 5 and 18 of the Mutunga Rules and Article 23(3)(b)'s prohibition on procedural formalities restricting Bill of Rights enforcement. The preliminary objection was dismissed with no order as to costs, and the petitioner was granted leave to amend the petition within 14 days to add the necessary parties. The petition will now proceed to hearing on the merits.

Key legal issues

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01

Whether the preliminary objection met the threshold of a pure point of law

Holding

It did not; the objection raised matters of form and discretion, and the respondents had not yet denied or admitted the petition's facts

Reasoning

Applying the Mukisa Biscuits and Joho definitions, a preliminary objection must rest on a point of law pleaded or arising by clear implication from the pleadings and capable of disposing of the suit. Here the objection turned on whether the petition met the constitutional threshold and whether necessary parties were joined, requiring facts to be ascertained and exercise of judicial discretion. The respondents had not filed a response.

p. 3
02

Whether non-joinder of the Land Registrar was fatal

Holding

No; the court has wide powers under Rules 5 and 18 of the Mutunga Rules to join necessary parties and Article 23(3)(b) forbids formalities from restricting Bill of Rights enforcement

Reasoning

Though the petition avers the Land Registrar participated in the breach, it did not name her. The court's discretion to order joinder is unfettered and must be exercised to achieve the ends of justice. Non-joinder should not defeat a suit save where there is a legal bar to maintainability. Leave was granted to amend.

p. 3

Legal principles established

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  • A suit should not in principle be struck out for joinder or non-joinder of a party except where there is a legal bar to maintainability
  • A preliminary objection must be a pure point of law capable of disposing of the suit

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.No order as to costs on the preliminary objection
  3. 3.Leave granted to the petitioner to amend the petition within 14 days

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 22, 23, 24, 25, 40, 47, 50, 165(3)(b)
  • Mutunga Rules 2013 (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules)Rules 3(8), 5, 10, 18

Cases cited (8)

  • Chelimo A. Marsin & 7 Others –vs- Officer Commanding GSU Camp Kirindon GSU Camp & 7 Others
    [2011] eKLR
  • Mukisa Biscuits Co. Ltd –vs- West End Distributors Ltd.
    [1996] E.A 696
  • Avatar Singh Bhamra & Another –vs- Oriental Commercial Bank
    Kisumu High Court Civil Case No. 53 of 2004
  • David Nyekorach Matsanga & Another –vs- Philip Waki & 3 Others
    [2017] eKLR
  • Independent Electoral & Boundaries Commission –vs- Jane Cheperenger & 2 Others
    [2015] eKLR
  • Hassan Ali Joho & Another –vs- Suleiman Said Shahbal & 2 Others
    [2014] eKLR
  • William Kiprono Towett & 1597 Others –vs- Farmland Aviation Ltd & 2 Others
    [2016] eKLR
  • Chief Land Registrar & 4 Others –vs- Nathan Tirop Koech & 4 Others
    [2018] eKLR
Jurisdiction invoked
Article 165(3)(b) as read with Articles 22 and 23 of the Constitution

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, "Evangeline Karugwata Gikono v Joyce Nkuene Cypriano & another [2022] KEELC 1404 (KLR)", Case Analysis (2022). Not stated in excerpt (ELC Petition, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1404/eng@2022-02-16

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