Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another (Environment & Land Petition 5 of 2019) [2022] KEELC 3295 (KLR)
The bottom line
#A Kericho landowner lost her claim against a road contractor because she couldn't prove ownership, that the house existed in 2012, or that blasting damaged it.
What this practically means
#Executive summary
#Key legal issues
#Proof of violation of property rights under Article 40
No arbitrary deprivation of property was proved; the Petitioner failed to adduce evidence of title or of the state denying her ownership.
The court noted the Petitioner claimed to be the registered proprietor but attached no registrable document or title under Section 26 of the Land Registration Act. There was also no photographic evidence confirming the house existed and was damaged. The Bill of Quantities dated April 2014 for a proposed residential development, lacking a demolition cost item, suggested the house did not exist in 2012 when the alleged damage occurred.
Proof of violation of the right to a clean and healthy environment under Article 42
The Petitioner ought first to have tabled her complaint before NEMA through its Public Complaints Committee; no Environmental Impact Assessment report was annexed to support her claim.
Sections 31, 32 and 33 of EMCA establish a Public Complaints Committee to investigate environmental complaints. Although the courts remain open to persons alleging breach of environmental law, the Petitioner did not exhaust that machinery, nor did she produce any EIA report supporting the allegation that her environmental right had been violated by the blasting.
Whether the constitutional petition was the proper forum for what is essentially a damages claim
Statutory breaches and ordinary damages claims belong in ordinary suits; constitutional petitions are reserved for actual infringement of rights.
Relying on Godfrey Paul Okutoyi and Bernard Murage, the court observed that the claim, at its core, was a claim in nuisance/damages for property damage. Breach of a statute should be redressed through the statutory remedy or an ordinary suit. Not every failure to comply with a law should be escalated into a constitutional petition.
Effect of inordinate and unexplained delay
The 7-year delay between the alleged damage (2012) and filing (2019) undermined the credibility of the claim and the availability of evidence.
Following Wellington Nzioka Kioko v Attorney General, the court held that although there is no limitation period for constitutional petitions, inordinate delay requires a plausible explanation. Here the assessments were done two and six years after the alleged damage, allowing for intervening activities and normal wear and tear, and the delay suggested possible manufacture of documents to extort money.
Legal principles established
#- A party alleging constitutional violation must set out with precision the provisions infringed and the manner of infringement, and prove it on a balance of probabilities.
- He who alleges must prove; failure to discharge the burden of proof is fatal to a petition.
- Not every breach of a statute gives rise to a constitutional petition; where an alternative statutory remedy exists it should be pursued first.
- Delay in filing a constitutional petition must not be inordinate and must be explained.
Court orders
#- 1.The Petition dated September 23, 2019 is dismissed with costs to the Respondents
- Jurisdiction invoked
- Articles 22, 23, 40 and 42 of the Constitution; section 13(7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Jingxi Zhongmei Engineering Construction Co. Ltd & another (Environment & Land Petition 5 of 2019) [2022] KEELC 3295 (KLR)", Case Analysis (2022). Petition dated September 23, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3295/eng@2022-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.