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ELCStruck OutNot stated in the judgment as provided· [2023] KEELC 35 (KLR)

Olembo v County Government of Kakamega & another (Environment & Land Petition E003 of 2021) [2023] KEELC 35 (KLR)

Environment and Land Court
17 January 2023
3,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kakamega landowner lost his case because he skipped the Land Act's remedies and filed a vague constitutional petition in the wrong court.

What this practically means

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Executive summary

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The petitioner, heir and administrator of the estate of the late Reuben James Olembo, registered owner of Kakamega/Town/Block 111/34, petitioned the Environment and Land Court at Kakamega claiming that the County Government of Kakamega had formed a committee (the second respondent) to repossess undeveloped plots, including the suit property, in violation of his rights to fair hearing and property under Articles 40, 47 and 50(1). He sought declarations, a permanent injunction against repossession, and costs. The respondents, through a replying affidavit of Kelvin Marangu, countered that the property had remained undeveloped contrary to special conditions of the 1973 allotment, that the repossession process was public and fair, that forfeiture is governed by Sections 73 to 77 of the Land Act, 2012, and that the petition lacked particulars. The court framed three issues: validity of the petition, capacity of the second respondent to be sued, and entitlement to relief. Applying the Anarita Karimi Njeru standard as reaffirmed in Mumo Matemu, the court held the petition lacked particulars of the alleged infringements. It further held that, under the principle of constitutional avoidance drawn from Communications Commission and Sumayya Athmani Hassan, the dispute over repossession had ample statutory recourse under the Land Act and was wrongly filed as a constitutional petition in a court without jurisdiction. The petition was struck out with no order as to costs. The remaining issues, including the second respondent's capacity to be sued, were not determined.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did not; the petitioner failed to plead particulars of the alleged infringements with reasonable precision

Reasoning

Rule 10(2) of the Mutunga Rules requires disclosure of facts, constitutional provisions violated and nature of injury. The petitioner only generally alleged infringement of rights to fair hearing and property without particulars, contrary to the Anarita Karimi Njeru standard as reaffirmed in Mumo Matemu.

p. 5
02

Whether the constitutional jurisdiction of the court was properly invoked

Holding

It was not; the principle of constitutional avoidance applied because the dispute over repossession had adequate statutory recourse under Sections 73 to 77 of the Land Act, 2012

Reasoning

The essence of the claim was the lawfulness of the repossession of the suit property. The Land Act, 2012 provides a full statutory scheme for forfeiture, procedure and relief against forfeiture. Filing an ordinary land dispute as a constitutional petition placed it in a court without jurisdiction.

p. 6
03

Whether the second respondent is a body capable of being sued

Holding

Not determined; unnecessary after finding the petition invalid

Reasoning

Having found the petition fell short of the substantive test and offended the principle of constitutional avoidance, the court declined to enquire into the remaining issues.

p. 7

Legal principles established

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  • A constitutional petition must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement
  • Where adequate statutory remedies exist, the constitutional court will decline jurisdiction under the principle of constitutional avoidance
  • A suit filed in a court without jurisdiction is dead on arrival and must be struck out

Court orders

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  1. 1.The petition is struck out
  2. 2.No order as to costs
Jurisdiction invoked
Articles 19, 20, 22, 40, 47, 48 and 50(1) of the Constitution invoked by petitioner; court's constitutional jurisdiction considered under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Olembo v County Government of Kakamega & another (Environment & Land Petition E003 of 2021) [2023] KEELC 35 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/35/eng@2023-01-17

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