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ELCDismissedEnvironment & Land Petition E003 of 2022· [2023] KEELC 19874 (KLR)

Kiambi & 4 others v Mukindia

Environment and Land Court of Kenya
20 September 2023
CYC K Yano
2,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed five siblings' land claim against their father because they filed it as a constitutional petition instead of an ordinary civil suit.

What this practically means

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Executive summary

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Five petitioners, biological children of the respondent, filed a petition dated March 22, 2022 seeking a declaration that their rights under article 40 of the Constitution were contravened, together with an order of inhibition and a permanent injunction restraining the respondent from leasing out or interfering with land parcels Kibirichia/Ntumburi/3500 and 3498. They alleged the respondent, registered owner of the suit properties, was breaching a mediation agreement reached in ELC Petition No. 21 of 2015/2016 by subdividing ancestral land and seeking to sell it, and that he held the original parcel Kibirichia/Ntumburi/57 in trust for them. The respondent was served but neither entered appearance nor filed a defence. Yano J framed two issues: whether the petition raised a constitutional issue, and whether the petitioners were entitled to the prayers sought. The court held that the dispute was essentially a private law claim based on alleged customary trust, with no constitutional underpinning, and that where an alternative remedy exists in the ordinary civil courts, constitutional jurisdiction should not be invoked. Relying on authorities including Godfrey Paul Okutoyi v Habil Olaka, Bernard Murage v Fine Serve Africa Ltd, Patrick Mbau Karanja v Kenyatta University, Teitinnang v Ariong, KALRO v Taura and Gabriel Muraya v Kenya Ports Authority, the court dismissed the petition. Given the respondent's non-participation and the father-child relationship, no order as to costs was made.

Key legal issues

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01

Whether the petition raises a constitutional issue

Holding

No - the petition is premised on an alleged customary trust, a private law matter that should have been filed as an ordinary civil suit

Reasoning

The court deduced from the pleadings and submissions that the claim is one of customary trust over ancestral land against the petitioners' father. Such a claim has no constitutional underpinning and falls squarely within private law. Where an alternative remedy exists in the ordinary civil courts, the constitutional jurisdiction should not be invoked, as doing so dilutes the sanctity of the Bill of Rights.

02

Whether the petitioners are entitled to the prayers sought

Holding

No - the petition having no merit as a constitutional claim, the declaration, inhibition and injunction were refused

Reasoning

Since the petition did not raise a constitutional issue and the underlying claim is a private law trust dispute, the constitutional remedies sought could not issue. The petition was dismissed in its entirety, though without costs given the respondent's non-participation and the father-child relationship between the parties.

Legal principles established

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  • Private law claims, including customary trust claims between private individuals, should not be brought as constitutional petitions where an alternative remedy exists in the ordinary civil courts

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticles 27 and 40
  • Constitution of KenyaArticle 165(3)(1)
  • Registered Land Act cap 300 (now repealed)Section 30(g)
  • Land Registration ActSection 28(b)
  • Land Registration ActSection 68(1)

Cases cited (20)

  • Malcolm Bell v Hon Daniel Toritich Arap Moi & another
    Sup Ct Application No 1 of 2013

    One need not be in actual physical possession and occupation of land to prove the existence of a trust

  • Obiero v Opiyo & others
    (1972) EA 227

    Customary trust

  • Esiroyo v Esiroyo
    (1973) EA 388

    Customary trust

  • Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation Limited & 6 others
    [2015] EKLR

    Injunction principles

  • Giella vs Cassman Brown and Co Ltd
    (1973) EA 358

    Conditions for grant of injunction

  • Mbuthia v Jimba Credit Corporation Ltd
    (1988) KLR 1

    Injunction principles

  • Moses C Muhia Njoroge & 2 others v Jane W. Lesaloi & 5 others
    High Court ELC Case No 514 of 2013

    Injunction principles

  • Mrao Ltd v First American Bank of Kenya and others
    (2003) KLR 125

    Prima facie case

  • Kanyi Muthiora v Maritha Nyokabi Muthiora
    [1984] eKLR
  • Mbui Mukangu v Gerald Mutwiri Mbui
    Ca No 281 of 2000
  • Keiyian Group Ranch v Samwel Oruta & 9 others
    [2021] eKLR
  • Elly Jepkoech Limo v Susan Wangoi Kibe & another
    [2020] EKLR
  • Abraham Kaisha Kanziku v Governor of Central Bank & others
    (2006) eKLR

    Where there is an alternative remedy in the ordinary civil courts, a party ought not to invoke constitutional jurisdiction

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

    Rights conferred by statute are not fundamental rights; constitutional petitions only for breaches of the Constitution

  • Bernard Murage v Fine Serve Africa Ltd & others
    (2015) eKLR

    Where a statutory remedy exists, it should be pursued first

  • Patrick Mbau Karanja v Kenyatta University
    (2012) eKLR

    Bill of rights and constitutional interpretative mandate should not be invoked where other remedies lie

  • Francis Waithaka v Kenyatta University
    Petition No. 633 of 2011

    Constitutional mandate should not be invoked where other remedies lie

  • Teitinnang v Ariong
    (1987) LRC const. 517

    No individual can owe a duty under fundamental rights provisions to another individual

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

    Simple civil disputes should not be filed as constitutional petitions

  • Gabriel Muraya & 2 others v Managing Director, Kenya Ports Authority
    (2016) eKLR

    Constitutional litigation is not a panacea; first port of call should be suitable statutory forums

Jurisdiction invoked
Article 40 of the Constitution of Kenya invoked by petitioners; court exercised Environment and Land Court jurisdiction under its constitutional and statutory mandate

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, "Kiambi & 4 others v Mukindia", Case Analysis (2023). Environment & Land Petition E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19874/eng@2023-09-20

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