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ELCDismissedEnvironment & Land Petition E004 of 2022· [2023] KEELC 20490 (KLR)

Murera Ole Koin & 5 others v John Kikonyo & 5 others

Environment and Land Court
9 October 2023
CMCG Mbogo
1,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land rights petition because it failed to clearly identify which constitutional rights were violated and how.

What this practically means

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Executive summary

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Six petitioners filed a constitutional petition at the Environment and Land Court at Narok seeking a permanent injunction restraining the respondents from surveying, demarcating, registering and inspecting parcel number Loita Ilkerin Land Adjudication Section, Narok County, plus costs. They alleged that the 1st to 3rd respondents, officials of the Loita Ilkerin Adjudication Section, carried out adjudication activities without public participation, never openly displayed the register of members and area lists, and at a public meeting on 29th March 2022 did not allow members of the public to give opinions on demarcation and beacon placement. The 4th to 6th respondents (Adjudication Officer, District Land Registrar and Attorney General) denied the petition, asserting the process complied with the law, that inspection occurred from 4th to 22nd February 2021 generating 241 committee cases and twelve appeals to the Arbitration Board, and that petitioners had not exhausted internal dispute resolution mechanisms. The matter proceeded by written submissions; the petitioners filed none. The respondents argued the petition failed the Anarita Karimi Njeru and Mumo Matemu precision standard. The court, applying Anarita Karimi Njeru, held that the petitioners bore the burden of proving violations on a balance of probabilities by identifying the specific constitutional articles infringed and availing evidence, and found the petition pleaded no violation with precision. Noting that parties are bound by their pleadings and the court cannot deduce grievances for them, and that the petitioners did not seek to amend, the court dismissed the petition with no orders as to costs.

Key legal issues

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01

Precision in pleading constitutional violations (Anarita Karimi Njeru standard)

Holding

The petition was dismissed for failure to plead with precision the constitutional provisions violated and the manner of infringement

Reasoning

The court applied the Anarita Karimi Njeru test, holding that a petitioner must identify the specific Articles of the Constitution infringed and avail evidence of the violation. Parties are bound by their pleadings and the court cannot deduce grievances on behalf of the petitioners, who also did not seek to amend the petition.

p. 3
02

Burden and standard of proof in constitutional petitions

Holding

Petitioners must prove violation on a balance of probabilities by identifying the relevant Articles and availing evidence

Reasoning

The court reiterated that in constitutional petitions the burden lies on the petitioner to prove violation or threatened violation of fundamental rights on a balance of probabilities, which requires clear identification of the specific constitutional provisions and supporting evidence.

p. 3

Legal principles established

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  • A party seeking constitutional redress must set out with a reasonable degree of precision the complaint, the provisions said to be infringed, and the manner of infringement
  • A petitioner bears the burden of proving violation of fundamental rights on a balance of probabilities, identifying the specific constitutional articles and availing evidence of violation

Court orders

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  1. 1.The petition dated 26th April 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (7)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR; (196-1980) KLR 1272

    Requirement to plead with reasonable precision the complaint, the provisions infringed and the manner of infringement

  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    [2012] eKLR

    Precision in pleading constitutional violations (cited by respondents)

  • Silverio Akubu & 4 Others v Charles Baariu Salesio & 3 Others
    [2019] eKLR

    Public participation in the adjudication process (cited by respondents)

  • PZ Cussons East Africa Limited v Kenya Revenue Authority
    [2013] eKLR

    Internal dispute resolution mechanisms (cited by respondents)

  • Mohamed Ahmed Khalid (Chairman) and 10 Others v Director of Land Adjudication & 2 Others
    [2013] eKLR

    Land adjudication dispute resolution (cited by respondents)

  • Justus Mugaa M’Impwi v District Land Adjudication & Settlement Officer Tigania West/East District & Another
    [2018] eKLR

    Rights not crystallised until adjudication appeals exhausted (cited by respondents)

  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR

    Exhaustion of alternative dispute resolution mechanisms (cited by respondents)

Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and freedoms; Environment and Land Court jurisdiction over land adjudication matters)

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, "Murera Ole Koin & 5 others v John Kikonyo & 5 others", Case Analysis (2023). Environment & Land Petition E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20490/eng@2023-10-09

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