Ngetich v County Government of Bomet & 5 others (Environment and Land Constitutional Petition E002 of 2020) [2023] KEELC 128 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land and procurement petition because it repeated a decided case and skipped the proper legal channels.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
Yes - the same land dispute between the same parties was conclusively determined in Bomet Petition No 3 of 2016; adding new parties does not evade the doctrine
Applying the five requirements in Bernard Mugo Ndegwa v James Nderitu Githae (identical issues, same parties, same title, concurrence of jurisdiction, finality), the court found the issue of ownership of parcels 307 and 308 had been litigated and determined in Bomet Petition No 3 of 2016, which the Court of Appeal also addressed in its injunction ruling. Adding the Petitioner and other Respondents could not evade Section 7 of the Civil Procedure Act.
Whether the Petition raised genuine constitutional issues
No - the dispute concerned land allocation and procurement, matters governed by statute, not violations of the Petitioner's fundamental rights
Following Anarita Karimi Njeru and Mumo Matemu, the Petition lacked precision on the constitutional provisions infringed. Citing Okutoyi, Murage and Kenyatta v Nairobi Star, the court held that breaches of statute are redressed under the relevant statute (Penal Code, Land Act, Land Registration Act, PPAD Act), and a constitutional petition is improper where adequate statutory remedies exist.
Whether the Petitioner proved violation of his rights on a balance of probabilities
No - even if the Petition were not res judicata, no evidence was adduced of any violation of the Petitioner's rights
The court held it was for the Petitioner to prove on a balance of probabilities that his rights were violated, identifying the specific Articles and availing evidence. The Petition alleged violations of numerous Articles in its title but provided no particulars, and no evidence showed state action injuring the Petitioner's constitutional rights.
Legal principles established
#- A petition res judicata of earlier proceedings cannot be revived by adding new parties or causes of action
- Ordinary statutory disputes should not be clothed as constitutional petitions; a petitioner must plead with precision the provisions infringed and the manner of infringement
Court orders
#- 1.The Petition is dismissed as res judicata and an abuse of the court process, with costs
- 2.In any event, the Petition is dismissed for failure to raise constitutional issues, with costs
- 3.The interim orders (status quo) issued on October 14, 2021 are vacated
- Jurisdiction invoked
- Constitution of Kenya, Articles 22, 23, 258 (enforcement of Bill of Rights) - petition alleging violation of constitutional rights; court also invoked Sections 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngetich v County Government of Bomet & 5 others (Environment and Land Constitutional Petition E002 of 2020) [2023] KEELC 128 (KLR)", Case Analysis (2023). Petition of 2020 (undated), Environment and Land Court at Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/128/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.