Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck Out· [2022] KEELC 3980 (KLR)

Haji & 28 others v Seif (As Trustee of Seif Bin Salim Trust) & 3 others (Environment & Land Petition 155 of 2015) [2022] KEELC 3980 (KLR)

Environment and Land Court
26 July 2022
NMN.A. Matheka
2,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Mombasa struck out residents' land claim because a rights petition cannot substitute for an ordinary civil land suit.

What this practically means

#

Executive summary

#
The petitioners, residents of Mwembekuku Estate on Mombasa Island occupying portions of Plot Mombasa/block XVII/219 registered in the names of the 1st to 3rd respondents as trustees of the Seif Bin Salim Trust, claimed inherited occupation dating back to the era of the Sultan of Zanzibar. They alleged that the 1930 registration of the land in the name of Sir Ali Bin Salim breached an 1890 treaty and that the respondents, having become registered proprietors in 2002, subdivided the land, offered it for sale, raised ground rent and instructed auctioneers to levy distress. They sought declarations that the land is trust land, nullification of the respondents' title, subdivision and registration in their names, a permanent injunction and costs. The respondents argued the petitioners were mere licencees in ground-rent arrears and that the petition failed the Anarita Karimi Njeru threshold, lacking particulars of the alleged violations. The court agreed, holding that merely citing Articles 19, 20, 21, 23, 25(c), 28, 40 and 43 without particulars was insufficient, and that the dispute was in substance an ordinary civil land ownership and ground rent matter. Applying Anarita Karimi Njeru, Mumo Matemo, Okutoyi, Murage and Mbau Karanja, the court held that the Bill of Rights should not be invoked where civil remedies lie. The petition was struck out as an abuse of process, with costs to the respondents.

Key legal issues

#
01

Whether the petition met the Anarita Karimi Njeru threshold of precision and particularisation

Holding

It did not; the petition merely cited constitutional provisions without particulars of the alleged violations, rendering it incompetent.

Reasoning

The court applied the Anarita Karimi Njeru principle as restated in Mumo Matemo. Citing Articles 19, 20, 21, 23, 25(c), 28, 40 and 43 without particulars of how each was infringed left the respondents unable to respond. The court found the dispute was in substance about ownership of land and unpaid ground rent, not constitutional rights.

p. 5
02

Whether a private land dispute can be brought as a Bill of Rights petition against private parties

Holding

No; the petition should have been filed as an ordinary civil suit, and disguising it as a constitutional petition constitutes an abuse of process.

Reasoning

Relying on Godfrey Paul Okutoyi, Bernard Murage, and Patrick Mbau Karanja (quoting Teitinnang v Ariong), the court held that rights under statutes or private law are enforced through ordinary suits; the Bill of Rights should not be invoked where other remedies lie, and individuals generally cannot owe constitutional duties to other individuals. The delineation between constitutional matters and civil suits must be maintained.

p. 6

Legal principles established

#
  • A constitutional petition must, with reasonable precision, identify the constitutional provisions alleged to be violated, the manner of violation, and provide particulars enabling respondents to answer.
  • Matters that are purely civil disputes between private individuals should not be disguised as constitutional petitions enforcing the Bill of Rights.

Court orders

#
  1. 1.The constitutional petition is struck out with costs to the Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 2(5) and (6)
  • Constitution of Kenya, 2010Article 43(1)(b), (e) and (3)
  • Constitution of Kenya, 2010Article 67(2)(e)
  • Constitution of Kenya, 2010Articles 19, 20, 21, 23, 25(c), 28
  • Constitution of Kenya, 2010Article 165(3)(a)
  • Ethics and Anti-corruption Commission Act, 2011Not specified

Cases cited (8)

  • Anarita Karimi Njeru v Republic
    No 1 (1979) KLR 154
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    (2014) eKLR (also cited as (2013) eKLR)
  • Giella v Cassman Brown Co Ltd
    (1973) EA 358
  • Godfrey Paul Okutoyi & others v Habil Olaka & Another
    (2018) eKLR
  • Bernard Murage v Fine Serve Africa Ltd & others
    (2015) eKLR
  • Patrick Mbau Karanja v Kenyatta University
    (2012) eKLR
  • Francis Waithaka v Kenyatta University
    Petition No 633 of 2011
  • Teitinnang v Ariong
    (1987) LRC (const.) 517
Jurisdiction invoked
Constitution of Kenya, 2010, enforcement of Bill of Rights jurisdiction (Articles 19, 20, 21, 23, 25(c), 28, 40, 43 invoked by petitioners; Article 165(3)(a) referenced)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Haji & 28 others v Seif (As Trustee of Seif Bin Salim Trust) & 3 others (Environment & Land Petition 155 of 2015) [2022] KEELC 3980 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3980/eng@2022-07-26

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