Tarus & 51 others v Attorney General & 4 others; Kebenei & 14 others (Interested Parties)
The bottom line
#The Environment and Land Court allowed 52 petitioners' land rights case to proceed, rejecting attempts to throw it out on procedural technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether the objections that the petition raises no constitutional issues qualify as preliminary objections
They do not; ascertaining whether constitutional issues arise requires examination of the pleadings, so it is not a pure point of law.
Applying the Mukisa Biscuit definition, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct, and cannot be raised if facts must be ascertained. Determining whether a petition raises constitutional issues requires consideration of all pleadings filed, so the objection fails the threshold.
Whether the petition is res judicata given Eldoret HCC Petition No. 3 of 2019
No; that petition was struck out for want of jurisdiction and was never heard on the merits.
The court noted that Petition No. 3 of 2019 was struck out because it was filed in a court without jurisdiction. A matter struck out without determination on the merits cannot found a plea of res judicata, so even if properly raised the plea would fail.
Whether the petition is sub-judice given ELC No. 40 of 2019
No; a constitutional petition and an ordinary civil suit are distinct and are better handled separately.
The court reasoned that a constitutional petition is a special way of raising matters touching on public bodies, while a civil case involves disputes between individuals and at times public bodies. Even where parties and subject matter overlap, the reliefs sought differ, which is why consolidation of a petition with a civil suit is undesirable.
Legal principles established
#- An objection that a petition does not raise constitutional issues is not a pure point of law because the court must examine the pleadings to ascertain whether constitutional issues arise.
- A constitutional petition and an ordinary civil suit are not the same proceedings, so pendency of a civil suit does not render a constitutional petition sub-judice; the two are better handled separately.
- Res judicata does not apply where the earlier suit was struck out for want of jurisdiction and was not heard on its merits.
Court orders
#- 1.Dismissal of the preliminary objection of the 4th Respondent
- 2.Dismissal of the preliminary objection of the 5th Respondent
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Articles 3(1), 19(1)(2), 21(1), 28, 29, 40 & 43 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarus & 51 others v Attorney General & 4 others; Kebenei & 14 others (Interested Parties)", Case Analysis (2023). Environment and Land Constitutional Petition 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16953/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.