Ngarendare CBO (Suing thro’ their Rep. Kashara Kitonga – Chairman & 3 others) v Ngarendare Forest Trust Thro’ Board of Trustees & 3 others [2022] KEELC 1979 (KLR)
The bottom line
#The Environment and Land Court struck out Ngarendare C.B.O's petition because it claimed a broken contract, not a violation of constitutional rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the threshold of a constitutional petition
The petition failed to specify which constitutional rights and freedoms were infringed, leaving gaps the court cannot fill, so it disclosed no constitutional question
Applying the Anarita Karimi Njeru threshold and the Constitution of Kenya (Protection of Rights and Freedoms) Rules 2013, a petitioner must identify the infringed rights and the manner of infringement. The petition was founded on a concession agreement/trust deed and alleged breach of contractual rights without anchoring facts to specific constitutional provisions. The court held it cannot fish out the facts or fill the gaps.
Exhaustion of alternative dispute resolution mechanisms
The petitioners were barred from rushing to court before exhausting the internal dispute mechanisms under the Forests Act, the Fair Administrative Actions Act and the Forest Participation Rules
The 2nd respondent is governed by the Forests Act Cap 385, whose section 9(2) provides internal dispute mechanisms. Under section 9(2) of the Fair Administrative Actions Act a party is barred from court absent exceptional circumstances, and rule 69 of the Forest Participation in Sustainable Forest Management Rules 2009 provides appeal to the National Environment Tribunal. Alternative convenient remedies bar constitutional litigation.
Whether the court should entertain a contractual dispute dressed as a constitutional petition
The claim sought to enforce contractual obligations governed by the Law of Contract Act, a private-law matter, and did not require interpretation of the Constitution
The court, relying on Supreme Court authority in Communications Commission of Kenya, held the Constitution should not be invoked in all manner of litigation. Where a dispute can be resolved through other means and does not require constitutional interpretation, courts will not entertain it under the guise of a petition. The petition therefore lacked any constitutional basis.
Legal principles established
#- A constitutional petition must set out with reasonable precision the facts complained of, the constitutional provisions infringed, and the manner of infringement
- Availability of convenient and beneficial alternative remedies bars a party from rushing to a constitutional court
- The Constitution should only be resorted to where it is necessary to do so, not in all manner of litigation
Court orders
#- 1.The petition is struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Article 165 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngarendare CBO (Suing thro’ their Rep. Kashara Kitonga – Chairman & 3 others) v Ngarendare Forest Trust Thro’ Board of Trustees & 3 others [2022] KEELC 1979 (KLR)", Case Analysis (2022). Petition dated 18.4.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1979/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.