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ELCDismissedPetition dated May 31, 2019 (amended January 15, 2021)· [2022] KEELC 2909 (KLR)

Kitale Industries Limited v County Government Of Nakuru & another (Environment & Land Petition 7 of 2019) [2022] KEELC 2909 (KLR)

Environment and Land Court
28 June 2022
MNMwangi Njoroge
3,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a company's constitutional claim over eviction and property damage because such disputes belong in an ordinary civil suit, not a petition.

What this practically means

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Executive summary

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The petitioner, a limited liability company, leased 3.6 acres at Kenya Railways Corporation's S.I.O.W yard in Nakuru for fifteen years from 2007 for milling and warehousing. The County Government of Nakuru (respondent), seeking land for a bus park, engaged the petitioner and Kenya Railways Corporation (interested party), and a tripartite meeting on January 22, 2019 agreed on alternative land and a fresh lease. The petitioner alleged the respondent thereafter interfered with its quiet possession, refused to renew its Single Business Permit, and, despite interim injunctions granted in June/July 2019, evicted it and destroyed property, claiming compensation of Kshs. 536,993,889.60. The respondent and interested party denied the allegations, asserting the claim was premature, overtaken by events, and unproved, with special damages neither specifically pleaded nor strictly proved. The court framed three issues and disposed of the matter on the first: applying the Anarita Karimi Njeru rule as reaffirmed in Mumo Matemu, it held the petition pleaded rights in a blanket manner without specifying the provisions breached and how, failing the constitutional threshold. It further held the disputes - eviction, destruction and quantification of loss - required evidence subject to cross-examination in an ordinary civil suit and were not justiciable by way of constitutional petition. Declining to analyse the remaining issues, the court dismissed the amended petition with costs to the respondent and the interested party on June 28, 2022, leaving the petitioner free to pursue its claims in a plaint.

Key legal issues

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01

Whether the petition met the constitutional pleading threshold

Holding

It did not; the petition pleaded rights in a blanket manner without specifying the provisions breached and how

Reasoning

Applying Anarita Karimi Njeru as reaffirmed in Mumo Matemu, the court found paragraph 17 of the petition only came close to specificity but remained general, giving no foothold for constitutional relief under article 40 because the specific actions complained of were not pleaded.

p. 6
02

Whether the claims were properly brought as a constitutional petition

Holding

No; the claims are essentially civil disputes over eviction and compensation requiring evidence

Reasoning

The court held that establishing who blocked the premises, demolished buildings and the worth of damage requires evidence testable by cross-examination of expert witnesses in an ordinary civil suit; constitutional petitions are determined on affidavit evidence with facts largely settled.

p. 6
03

Whether the remaining issues (violation of rights and reliefs) needed determination

Holding

No; having found the petition did not meet the constitutional threshold, the court declined to analyse the remaining issues

Reasoning

The court reasoned that since its conclusion was that the petition failed the required constitutional threshold, there was no need to subject the remaining issues to analysis for merit, and it dismissed the petition.

p. 6

Legal principles established

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  • A constitutional petition must plead with reasonable precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru rule)
  • Where the dispute concerns factual matters such as trespass, eviction and quantification of loss, redress lies in an ordinary civil suit, not a constitutional petition

Court orders

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  1. 1.The amended petition dated 15/1/2021 is dismissed
  2. 2.Costs of the petition to the respondent and the interested party

Authorities

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Legislation

  • Constitution of Kenyaarticles 10, 19, 20, 21, 22, 23(3), 24, 27, 35, 40, 47, 50
  • Evidence Actsection 107

Cases cited (7)

  • David Moranga Oyugi vs. County Government of Kisii & 4 others
    [2022] eKLR
  • Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited
    [2016] eKLR
  • Vivian Muia v Mzoori Limited
    [2017] eKLR
  • Peter Mark Gershom Ouma v Nairobi City Council
    [1976] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Godfrey Paul Olutoyi & another vs Habil Olaka & another
    [2018] eKLR
Jurisdiction invoked
Articles 19, 20, 21, 22, 23, 24, 27, 35, 40, 47 and 50 of the Constitution of Kenya, 2010 (invoked by the petitioner; court declined constitutional relief)

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, "Kitale Industries Limited v County Government Of Nakuru & another (Environment & Land Petition 7 of 2019) [2022] KEELC 2909 (KLR)", Case Analysis (2022). Petition dated May 31, 2019 (amended January 15, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2909/eng@2022-06-28

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