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ELCStruck OutPetition dated 25/10/2019 (filed 28/10/2019)· [2022] KEELC 2885 (KLR)

Tanui & 8 others v Borop Multipurpose Co-op Society Ltd & 2 others (Environment & Land Petition 22 of 2019) [2022] KEELC 2885 (KLR)

Environment and Land Court
18 May 2022
MNMwangi Njoroge
4,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land dispute filed as a constitutional petition, holding that disputed facts must be proven through ordinary civil proceedings.

What this practically means

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Executive summary

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The Petitioners, members of the 1st respondent co-operative society, challenged Gazette Notice No. 7452 of 9/8/2019 by which the Land Registrar gave notice of intended cancellation of their title deeds to parcels Mau Summit/Sachangwani Block 10/1-200. They claimed the titles were lawfully issued between 2006 and 2010 after subdivision of the society's land, and sought declarations that the cancellation without notice or hearing violated Articles 10, 28, 29, 40, 47 and 50, certiorari to quash the notice, a permanent injunction, compensation and costs. The 1st respondent countered that a consent order in Cooperative Tribunal Case No. 36 of 2002 halted title issuance, that the petitioners' titles were irregularly issued and fraudulent, and that the petition was a civil dispute disguised as a constitutional petition intended to evade limitation. The 2nd and 3rd respondents said the notice merely implemented the Tribunal's order in Case No. 6 of 2010 and invited objections. Framing three issues, the court applied the constitutional avoidance principle and held that disputed questions of membership, entitlement and fraud required a proper hearing with evidence, unsuitable for an affidavit-based petition. It found no prima facie violation of the petitioners' rights and held the 2nd respondent acted to effect the Tribunal award rather than independently. The petition was struck out with no orders as to costs.

Key legal issues

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01

Whether the petition met the constitutional petition threshold

Holding

It did not; the petition was a civil dispute over land allocation disguised as a constitutional petition, requiring proof of disputed facts

Reasoning

The court applied the constitutional avoidance principle from Communications Commission of Kenya and the rule that judicial review is unsuitable for disputed facts. Determining members' entitlements to the society's land required proof of membership, receipts, survey plans and evidence, which cannot be done by way of affidavit-based petition. Ample alternative avenues existed for the grievances.

p. 8
02

Whether the petitioners' constitutional rights were violated

Holding

No violation of Articles 40, 29(d) or 28 was demonstrated; the 2nd respondent acted to effect the Cooperative Tribunal orders, not independently

Reasoning

The court found no prima facie case that property rights were threatened, since absolute title accrued only upon fair distribution after subdivision and proof of purchase. The 2nd respondent was not exercising independent discretion but acting in conjunction with the 1st respondent pursuant to the Tribunal award, so no constitutional violation could be attributed to it.

p. 8

Legal principles established

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  • A court will not determine a constitutional issue where a matter may properly be decided on another basis (constitutional avoidance)
  • Judicial review remedies are not available in matters where facts are disputed
  • A constitutional petition premised on affidavit evidence requires undisputed verified facts; disputed claims to land requiring proof of membership, ownership and payment cannot be determined in a petition

Court orders

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  1. 1.The petition dated 25/10/2019 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 28, 29, 40, 47, 50, 232, 236, 40(2)(a), 40(2)(b), 29(d)
  • Land Registration Act 2012Sections 24, 25, 26
  • Fair Administrative Action ActSection 4(1), (2) and (3)
  • Cooperative Societies Act 1997Section 76
  • Limitation of Actions Act Cap 22null

Cases cited (11)

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
  • Funzi Island Development Ltd & 2 Others vs County Council of Kwale & 2 Others
    [2014] eKLR
  • Republic V Registrar of Titles Mombasa & 4 others Ex-parte A.K Abdulgani Limited
    [2018] eKLR
  • Republic vs Gathaite Farmers' Cooperative Society Limited & Another Ex-Parte Richard Ng'ang'a Kamiro
    [2013] eKLR
  • Kenya Bus Services Limited & 2 Others vs Attorney General
    [2005] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Aliance & 5 Others
    null
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Benard Murage vs. Fine Serve Africa Limited & 3 Others
    [2015] eKLR
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • John K. Rotich and 4 others vs. Joel K. Yegon and 7 others, Nairobi Cooperative Tribunal Case No. 36 of 2002
    null
Jurisdiction invoked
Constitution of Kenya 2010, Articles 10, 28, 29, 40, 47, 50 (invoked by Petitioners); original constitutional jurisdiction of the Environment and Land Court

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, "Tanui & 8 others v Borop Multipurpose Co-op Society Ltd & 2 others (Environment & Land Petition 22 of 2019) [2022] KEELC 2885 (KLR)", Case Analysis (2022). Petition dated 25/10/2019 (filed 28/10/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2885/eng@2022-05-18

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