Christopher Lekodi Kimurata v William Leshon Nkeiya & 5 others [2022] KEELC 2158 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can challenge an unfair land decision through a constitutional petition even after the usual six-month deadline has passed.
What this practically means
#Executive summary
#Key legal issues
#Whether the six-month time bar for certiorari applies to a constitutional petition seeking enforcement of rights
No. The limitation applies only to judicial review proceedings instituted under the Law Reform Act, not to constitutional petitions under Articles 22 and 258.
The court distinguished proceedings under Articles 22 and 258 seeking enforcement of rights, where judicial review reliefs may be granted, from pure judicial review proceedings under the Law Reform Act. Relying on Kariuki Kiboi and Samuel Kimondo Theuri, it held limitation provisions cannot bar rights enforcement petitions. The Petitioner invoked Articles 40 and 47 concerning his proprietary interests, so the petition was of a constitutional nature and the time bar ground failed.
Whether the certiorari prayer is res judicata
No. The parties, title and issues in the petition differ from those in Kilgoris ELC PMCC No.14 of 2018.
Applying Section 7 of the Civil Procedure Act and the five headings in Bernard Mugo Ndegwa, the court found the prior suit concerned trespass on parcel 150 by three defendants, while the petition concerns the Petitioner's rights over parcel 44 under Articles 40 and 47. Only the Applicants appear in both, and their inclusion does not render the petition res judicata, as the issues were never adjudicated in the prior suit.
Whether the Petition demonstrates constitutional avoidance
No. The allegations of infringement of Articles 40 and 47 cannot be adjudicated through an appeal or judicial review.
The Petitioner was never a party to the prior suit, and the lower court had become functus officio. The judgment and ensuing decree and eviction order allegedly interfered with the Petitioner's property rights, raising personal constitutional grievances. Distinguishing Directline Assurance, the court held these allegations could not be resolved by appeal or judicial review and fell within its jurisdiction under the Constitution.
Legal principles established
#- The six-month limitation under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules does not apply to reliefs of judicial review sought within a constitutional petition enforcing fundamental rights.
- Res judicata can only be invoked in constitutional matters in the clearest of cases where the same parties relitigate the same issue on the same subject matter.
- Inclusion of a party in a petition does not automatically render the petition res judicata where different issues and different property are in question.
Court orders
#- 1.The entire Preliminary Objection is dismissed with costs to the Respondents
- 2.The 1st and 2nd Respondents are directed to file their Responses to the Petition within Fourteen (14) days from the date of delivering the Ruling
- 3.The Petitioner is directed to fix the main Petition for directions within the next THIRTY (30) DAYS from delivery of the Ruling
- 4.Failure to comply with direction 3, the Conservatory Orders issued on 23rd September 2021 shall automatically be discharged
- Jurisdiction invoked
- Articles 3, 20, 22, 23, 27, 28, 40, 47 and 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Lekodi Kimurata v William Leshon Nkeiya & 5 others [2022] KEELC 2158 (KLR)", Case Analysis (2022). Kilgoris ELC Petition dated 22nd September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2158/eng@2022-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.