Kaburia (Suing as administrator of the Estate of Anampiu Ngiti alias Jonathan M’Anampiu (Deceased) v M'Nkanata Kiogora (Sued as the administrator of the Estate of Jeremiah M’Rukaria M’Imanyara (Deceased) & 2 others (Petition 18 of 2017) [2022] KEELC 2576 (KLR)

Relying on Mukisa Biscuits and related authorities, the court noted a preliminary objection must rest on a settled, crisp point of law applicable to undisputed facts. The respondents' objection went to whether the court had jurisdiction over an essentially civil dispute packaged as a constitutional petition. Jurisdiction is everything and is either present or absent, so the point could be taken at the threshold.

Under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and the Anarita Karimi Njeru principle, a petitioner must demonstrate a nexus between the parties, the constitutional provisions alleged to be infringed, the manner of infringement and the reliefs sought. The petition pleaded fraud, collusion and alteration of the register but did not link these to specific constitutional violations, rendering the allegations vague and denying the respondents a fair hearing.

The reliefs sought — cancellation of partitions, resurvey and criminal investigation — do not necessarily depend on a constitutional court. The petitioner never lodged complaints with the relevant quasi-judicial bodies, the Land Fraud Unit, the DCI or the ombudsman before invoking the constitutional jurisdiction. The dispute had also not ripened for want of verified evidence, and a civil suit before the ELC would have been the proper forum.

Annexure JK4 was a ruling in Meru CC No. 336/88 showing a valid court order effecting transfers of 4 acres from the suit land involving the petitioners. Having accepted the benefit of that judgment, the petitioner could not turn around and allege its invalidity, applying the doctrine of election and approbation and reprobation.