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ELCDismissedEnvironment & Land Petition E003 of 2020· [2022] KEELC 15469 (KLR)

Rado Development Company Limited v County Government of Kisumu & another

Environment and Land Court
19 December 2022
3,183 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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The Environment and Land Court dismissed Kisumu County's attempt to throw out Rado Development's land rights petition, so the case will proceed to a full hearing.

What this practically means

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Executive summary

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Rado Development Company Limited, the registered leasehold proprietor of Kisumu/Municipality Block 9/111, which it purchased from the County Council of Kisumu by tender in 2012 for Kshs 31,000,000, petitioned the Environment and Land Court at Kisumu after the County Government of Kisumu and the Kisumu City Manager issued a public notice requiring it and its 74 tenants to vacate within 48 hours. The petitioner sought conservatory and prohibitory orders, declarations that the notice was null and void and that its rights to privacy, property and fair administrative action had been violated, and damages. The respondents opposed, contending the property was public land irregularly acquired, and filed a cross-petition seeking cancellation of the petitioner's title. A preliminary objection dated July 6, 2022 argued that the petition disclosed no constitutional issue, offended constitutional avoidance and exhaustion doctrines, and was an abuse of process. Applying Mukisa Biscuit, Oraro v Mbaja and constitutional avoidance authorities, Okong'o J agreed the dispute was essentially a civil land matter better determined in an ordinary suit. However, Ombwayo J had earlier, in allowing conservatory orders on September 23, 2021, found a prima facie constitutional case, and that finding could only be rebutted on appeal or at the hearing of the petition, not by a preliminary objection. The preliminary objection was dismissed with costs to be in the cause. The main petition remains pending for full hearing.

Key legal issues

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01

Whether the petition discloses a constitutional issue

Holding

Although the court agreed the dispute is essentially a civil land matter, it declined to uphold the objection because a prior ruling had found a prima facie constitutional case

Reasoning

The court accepted that trespass and threatened eviction have civil law remedies and that constitutional petitions are inappropriate for determining land ownership disputes. However, Ombwayo J had already found a prima facie constitutional case when allowing conservatory orders. That finding binds the court at the interlocutory stage and can only be displaced on appeal or at the full hearing of the petition, not by a preliminary objection.

p. 6
02

What constitutes a valid preliminary objection

Holding

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law not dependent on ascertainment of facts

Reasoning

The court restated the classic test that a preliminary objection is argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or where judicial discretion is sought. The respondents' grounds, particularly on how the suit property was acquired, required factual inquiry and therefore could not dispose of the petition summarily.

p. 4
03

Constitutional avoidance in land disputes

Holding

Obiter: constitutional petitions and judicial review are not appropriate procedures for determining land ownership disputes; a civil suit is the proper forum

Reasoning

The court expressed agreement with the respondents that the complaint of trespass and threatened eviction has a civil law remedy and that the petitioner should have filed a civil suit for injunction. Issues of ownership of land arising from an allegedly irregular sale of public land should be determined in a normal civil suit, not a constitutional petition.

p. 6

Legal principles established

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  • A preliminary objection cannot be used to overturn a finding of a prima facie case made in a conservatory order ruling; such a finding can only be rebutted on appeal or at the hearing of the petition
  • A preliminary objection must raise a pure point of law on assumed facts; it fails where facts must be ascertained

Court orders

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  1. 1.The respondents' notice of preliminary objection dated July 6, 2022 is dismissed
  2. 2.Costs of the preliminary objection to be in the cause

Authorities

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Legislation

  • Urban Areas and Cities Actsections 12, 28, 29
  • County Governments Actsection 77
  • Public Service Commission Actsections 85, 86, 87
  • Constitution of Kenyaarticle 234(2)(i)

Cases cited (13)

  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    [2014] eKLR

    Restating the Mukisa Biscuit test for preliminary objections

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Oraro v Mbaja
    [2005] 1 KLR 141

    A preliminary objection must not be blurred with factual details liable to be contested

  • CNM v WMG
    [2018] eKLR

    What constitutes a constitutional issue, citing Fredericks v MEC for Education

  • Fredericks & others v MEC for Education and Training, Eastern Cape & others
    (2002) 23 ILJ 81(CC)

    Definition of constitutional matters

  • S v Boesak
    (2001)(1)SA 912(CC)

    Referenced within Fredericks on constitutional matters

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR

    The principle of constitutional avoidance

  • S v. Mhlungu
    1995 (3) SA 867 (CC)

    Where a case can be decided without a constitutional issue, that course should be followed

  • Ashwander v. Tennessee Valley Authority
    297 US 288, 347 (1936)

    Not deciding a constitutional question where another basis exists

  • Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd
    [2013] eKLR

    Where a civil law remedy exists, a party should pursue it

  • AG v SK Dutambala
    Cr Appeal No 37 of 1991

    Constitutional sanctions reserved for appropriate and really serious occasions

  • Leonida Aloo Odhiambo v Attorney General & another
    [2020] eKLR

    Constitution should not be invoked where a matter can be disposed of without it

  • Kevin K Mwiti & others v Kenya School of Law & others
    [2015] eKLR

    Nature of a prima facie case in conservatory order applications

Jurisdiction invoked
Constitutional petition invoking the Environment and Land Court's jurisdiction under Article 162(2) of the Constitution (as pleaded by the parties; the judgment does not expressly cite the provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rado Development Company Limited v County Government of Kisumu & another", Case Analysis (2022). Environment & Land Petition E003 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15469/eng@2022-12-19

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