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ELCStruck OutNot stated in extract· [2022] KEELC 2700 (KLR)

Wanje & 6 others v Mwarogo & 3 others (Environment & Land Petition 46 of 2021) [2022] KEELC 2700 (KLR)

Environment and Land Court
17 May 2022
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land petition because the same dispute was already decided and no genuine constitutional issue was raised.

What this practically means

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Executive summary

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The 1st Respondent raised a preliminary objection against the Petitioner's Notice of Motion dated 28th September 2021 and the entire Petition, on three grounds: that the Petition contravened Section 30 of the Land Adjudication Act (Cap 284); that it was res judicata under Section 7 of the Civil Procedure Act, the issues having been determined in three prior land cases (a 1968 Kaloleni case, a 1986 Mombasa case and a 1997 Kaloleni award); and that the Petition disclosed no constitutional issue, being misconceived and an abuse of process. The court applied the Mukisa Biscuit and Oraro v Mbajja definitions of a preliminary objection, then found the matter res judicata, noting the Petitioners did not dispute the prior cases but merely disagreed with findings in Case No. 119 and Objection No. 91, for which they had a right of appeal within 60 days. The court then applied the Anarita Karimi Njeru principle as restated in Mumo Matemo: a constitutional petition must plead with precision the provisions infringed and the manner of infringement. It further relied on Okutoyi, Murage, Mbau Karanja and Teitinnang v Ariong for the propositions that statutory rights are not fundamental rights and that the Bill of Rights should not be invoked where statutory remedies exist or where the state is not a party. The court found the Petition was in substance an appeal from an Adjudication Committee decision, not a constitutional matter, and struck out the application and Petition with costs to the Respondents.

Key legal issues

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01

Res judicata

Holding

The matters raised were previously litigated and determined; the Petition is res judicata.

Reasoning

The 1st Respondent established that issues raised in the Petition were canvassed and determined in three prior land cases concerning the same parcel and parties. The Petitioners did not dispute the existence of those cases but merely disagreed with findings in Case No. 119 and Objection No. 91, in which they had a right of appeal within 60 days. The court found the matter already litigated.

p. 2
02

Threshold of a constitutional petition

Holding

The Petition fails the Anarita Karimi Njeru threshold; it is an ordinary land matter dressed as a constitutional petition.

Reasoning

Citing Anarita Karimi Njeru and Mumo Matemo, the court held that a petition must identify the constitutional provisions infringed, the manner of infringement, and particulars enabling respondents to respond. The instant petition was an appeal from an Adjudication Committee decision, not a constitutional matter, and statutory remedies in ordinary civil courts should have been pursued.

p. 3

Legal principles established

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  • A constitutional petition must with reasonable precision identify the constitutional provisions alleged to be violated and the manner of violation; merely citing provisions is insufficient.
  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded are correct.

Court orders

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  1. 1.The Petitioner's Notice of Motion Application dated 28th September 2021 and the entire Petition are struck out
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Land Adjudication ActSection 30
  • Civil Procedure ActSection 7
  • Constitution of KenyaBill of Rights; Article 165(3)(a)
  • Ethics and Anti-corruption Commission ActNot specified

Cases cited (12)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs Mbajja
    (2005) eKLR
  • Anarita Karimi Njeru vs The Republic
    (1979) eKLR
  • Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Godfrey Paul Okutoyi & Others vs Habil Olaka & Another
    (2018) eKLR
  • Bernard Murage vs Fine Serve Africa Ltd & others
    (2015) eKLR
  • Patrick Mbau Karanja vs Kenyatta University
    (2012) eKLR
  • Francis Waithaka vs Kenyatta University
    Petition No. 633 of 2011
  • Teitinnang vs Ariong
    (1987) LRC (const.) 517
  • Muchiokichala vs Sofa Mwarogo
    Kaloleni District Magistrate Land Case No.15 of 1968
  • Chemu Tsanga Vs Kulwa Chalo
    Mombasa Resident Magistrate Land Case No.19 of 1986
  • Kulwa Chalo vs Masha M. Mwarogo
    Kaloleni Resident Magistrate Land Award No.23 of 1997
Jurisdiction invoked
Constitutional petition jurisdiction (Bill of Rights interpretative mandate under the Constitution); preliminary objection under Section 30 of the Land Adjudication Act Cap 284 and Section 7 of the Civil Procedure Act

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, "Wanje & 6 others v Mwarogo & 3 others (Environment & Land Petition 46 of 2021) [2022] KEELC 2700 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2700/eng@2022-05-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.