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ELCDismissedPetition dated 20th July 2016 (Nairobi, ELC)· [2022] KEELC 2526 (KLR)

Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co. Advocates & 2 others (Environment & Land Petition 852 of 2016) [2022] KEELC 2526 (KLR)

Environment and Land Court
14 July 2022
4,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner filed a petition dated 20th July 2016 seeking declarations that orders made on 2nd October 2015 and 27th October 2015 in Nairobi Milimani CMCC No. 170/2015 (Duncan Kireri Wachira v Edward Thiong'o Wachira) violated his rights under Articles 27, 28, 31, 39, 40, 43, 48 and 50, certiorari to quash those orders, prohibition of the lower court suit, damages of Kshs. 320,000/-, reimbursement of future rent, restoration of alleged overriding interests in L.R. No. 330/694, Nairobi, a mandatory injunction for vacant possession, restitution and costs. He had been a defendant in the lower court suit, was heard on an eviction application, and a mandatory injunction directing him to hand over vacant possession was issued on 2nd October 2015, pursuant to which he was evicted on 4th November 2015. The 1st Respondent was the advocate who acted for the 3rd Respondent; the 2nd Respondent was the lower court. The court applied the doctrine of constitutional avoidance, holding that the Petitioner had an adequate alternative remedy of appeal against the impugned orders which he never pursued. On the merits, the court found the Petitioner failed the Anarita Karimi Njeru precision threshold, pleading an omnibus of provisions without demonstrating the manner of infringement or the involvement of the advocate. The court further held that the petition abated against the 3rd Respondent, who died on 22nd October 2019 without substitution, rendering failure to substitute him fatal and the reliefs ungrantable. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Applicability of the doctrine of constitutional avoidance

Holding

The doctrine applies because the Petitioner had an adequate alternative remedy of appeal against the lower court orders and did not pursue it

Reasoning

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.

p. 6
02

Precision of constitutional pleadings

Holding

The Petitioner pleaded an omnibus of provisions but failed to demonstrate with precision the manner of infringement

Reasoning

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.

p. 7
03

Effect of abatement against the deceased 3rd Respondent

Holding

The petition abated against the deceased 3rd Respondent and no orders, including the proprietary reliefs, could issue

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The petition dated 20th July 2016 was dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 28, 31, 39, 40, 43, 48 and 50

Cases cited (13)

  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Joseph Njuguna & 28 others v George Gitau t/a Emmaus School & another
    [2015] eKLR
  • MMM v AMK
    [2016] eKLR
  • Commission on Administrative Justice v Insurance Regulatory Authority & another
    [2017] eKLR
  • Anthony Otiende Otiende v Public Service Commission & 2 others
    [2016] eKLR
  • Nancy Wangui Wakaba & 3 others v Peter Nderi Wakaba
    [2013] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd.
    [2013] eKLR
  • Leonida Aloo Odhiambo v Attorney General & another
    [2020] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
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

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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, "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.