Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co. Advocates & 2 others (Environment & Land Petition 852 of 2016) [2022] KEELC 2526 (KLR)
The bottom line
#The Environment and Land Court dismissed a constitutional petition because the petitioner should have appealed a lower court ruling instead of filing a rights case.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the doctrine of constitutional avoidance
The doctrine applies because the Petitioner had an adequate alternative remedy of appeal against the lower court orders and did not pursue it
The Petitioner had participated in the lower court proceedings, was heard on the eviction application, and could have appealed both the 2nd October 2015 order and the 27th October 2015 directions. Allowing such petitions would open floodgates to constitutional challenges of ordinary rulings. The court invoked Uhuru Muigai Kenyatta, Leonida Aloo Odhiambo and the Supreme Court's decision in Communications Commission of Kenya on constitutional avoidance.
Precision of constitutional pleadings
The Petitioner pleaded an omnibus of provisions but failed to demonstrate with precision the manner of infringement
Relying on Anarita Karimi Njeru and Mumo Matemu, the court held that a litigant must set out with reasonable precision the provisions said to be infringed and the manner of infringement. The Petitioner did not show the direct correlation between the lower court proceedings and the alleged violations, nor how the advocate-1st Respondent violated his rights.
Effect of abatement against the deceased 3rd Respondent
The petition abated against the deceased 3rd Respondent and no orders, including the proprietary reliefs, could issue
The 3rd Respondent, plaintiff in the lower court and beneficiary of the impugned orders, died on 22nd October 2019 and was never substituted. Even if the petition had merit, the absence of the 3rd Respondent meant the reliefs, which were principally directed against him, could not be granted. The lower court suit also abated for the same reason.
Legal principles established
#- Courts will not determine a dispute raised as a constitutional issue where it can be determined through ordinary legal processes (constitutional avoidance)
- A party aggrieved by a lower court decision must pursue the appeal process rather than a constitutional petition
- A constitutional petition must plead violations with reasonable precision (Anarita Karimi Njeru threshold)
- Failure to substitute a deceased respondent is fatal to the petition and reliefs cannot issue against an abated petition
Court orders
#- 1.The petition dated 20th July 2016 was dismissed with costs to the respondents
- Jurisdiction invoked
- Constitution of Kenya 2010 (Bill of Rights enforcement jurisdiction; Articles 27, 28, 31, 39, 40, 43, 48 and 50 invoked in the petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co. Advocates & 2 others (Environment & Land Petition 852 of 2016) [2022] KEELC 2526 (KLR)", Case Analysis (2022). Petition dated 20th July 2016 (Nairobi, ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2526/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.