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ELCDismissedPetition 15 of 2013· [2023] KEELC 19866 (KLR)

Remus Cyprian Banu Saimon Mutiri alias Remus Banu Muturi alias Remus Banu Muthuuri v Stephen Nturibi Itirikia

Environment and Land Court at Meru
20 September 2023
CYC K Yano
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid to remove a neighbour's encroaching structures because he used a constitutional petition instead of an ordinary trespass suit.

What this practically means

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Executive summary

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The petitioner, registered proprietor of title No. Tigania West/Akithi III/1388 measuring about 0.1425 Ha near Muili market in Meru County, petitioned under Articles 22, 23, 40, 159 and 165 of the Constitution seeking a declaration of sole and exclusive ownership, an order compelling the respondent to demolish and remove a stone house and pit latrine allegedly encroaching about 0.009 Ha onto his land and blocking his road of access, a permanent injunction, and costs. He relied on a Geoland survey report of 24 October 2012 and a survey report of 9 May 2022 following a scene visit by the Deputy Registrar, Land Registrar and surveyor. The respondent, owner of adjacent plot No. 30, denied encroachment through an 'answer to petition' but did not file submissions or participate at the hearing. The court framed two issues: whether the petition raised a constitutional issue, and whether the petitioner was entitled to the reliefs sought. Holding that the dispute was essentially a private-law claim of trespass and encroachment, the court, following Okutoyi, Mbau Karanja, KALRO and Mutava, found it lacked constitutional underpinning and should have been filed as an ordinary civil suit. The petition was dismissed with each party bearing their own costs, the respondent having not participated at the hearing.

Key legal issues

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01

Whether the petition raises a constitutional issue

Holding

No - the petition is a private-law trespass and encroachment dispute that should have been filed as an ordinary civil suit.

Reasoning

The court deduced from the pleadings that the real complaint was trespass or encroachment, with the petitioner seeking a declaration of ownership, demolition and injunction. Relying on Okutoyi, Mbau Karanja, KALRO and Mutava, the court held that private-law claims between individuals should not be disguised as constitutional petitions, as this dilutes the sanctity of the Bill of Rights.

02

Whether the petitioner is entitled to the reliefs sought

Holding

No - the petitioner failed to demonstrate violation of his Article 40 rights, and the petition was dismissed.

Reasoning

Having found no constitutional issue, the court held that the petitioner had not made out a case that his constitutional rights under the Articles cited were violated or threatened. The proper forum was an ordinary civil suit; the petition was dismissed with no order as to costs given the respondent's non-participation.

Legal principles established

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  • Private-law disputes between individuals, such as trespass, should not be brought as constitutional petitions but resolved through ordinary civil litigation.
  • A petitioner must demonstrate actual or threatened violation of the constitutional rights invoked for a petition to succeed.

Court orders

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  1. 1.The petition is dismissed.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 40(1) and (2)
  • Constitution of KenyaArticles 22, 23, 159, 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 15(2)(a) & (b)

Cases cited (10)

  • Anarita Karimi Njeru Vs Republic
    (1979) eKLR

    Threshold for pleading constitutional violations

  • Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    Threshold for pleading constitutional violations

  • Simon Natal Ntoitha Vs Sub County Land Adjudication and Settlement Officer, Igembe North & 2 others
    (2022) eKLR

    Relied on by petitioner to urge allowance of the petition

  • Kennedy Onyango vs Idime Enterprises and another
    [2021] eKLR

    Petitioner must demonstrate actual or threatened violation of rights

  • Benard Murage Vs Fine Seve Africa Ltd & 3 others
    [2015] eKLR

    Alternative statutory remedies should be pursued before constitutional petitions

  • Godfrey Paul Okutoyi & others vs Habil Olaka & another
    (2018) eKLR

    Breach of statute redressed in ordinary suit, not constitutional petition

  • Patrick Mbau Karanja Vs Kenyatta University
    (2012) eKLR

    Bill of rights not invoked where other remedies lie; private matters follow ordinary route

  • Teitinnang Vs Ariong
    (1987) LRC const. 517

    Individuals cannot owe duties under fundamental rights provisions to other individuals

  • Kenya Agricultural and Livestock Research Organization (KALRO) vs Edison Sonje Taura & 3 others
    [2021] eKLR

    Simple trespass claims should be commenced by plaint, not petition

  • Gabriel Mutava & 2 others Vs Managing Director, Kenya Ports Authority
    2016, eKLR

    Constitutional litigation not a panacea; statutory forums are first port of call

Jurisdiction invoked
Articles 22, 23, 159 and 165 of the Constitution of Kenya (enforcement of fundamental rights under Article 40)

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, "Remus Cyprian Banu Saimon Mutiri alias Remus Banu Muturi alias Remus Banu Muthuuri v Stephen Nturibi Itirikia", Case Analysis (2023). Petition 15 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19866/eng@2023-09-20

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