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ELCStruck OutEnvironment & Land Petition E001 of 2023· [2023] KEELC 21100 (KLR)
Kongo v China Henan International Corporation Group Company Limited
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·~1 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court in Homa Bay struck out a constitutional rights petition because it was filed in the wrong form, leaving the door open to refiling.
What this practically means
#Executive summary
#The petitioner, Samwel Yogo Kongo, filed a petition dated 1st October 2023 and lodged on 3rd August 2023 at the Environment and Land Court at Homa Bay, alleging contravention and threatened contravention of fundamental rights and freedoms under Articles 26, 28, 40, 42, 43(1), 69(2) and 70(c) of the Constitution of Kenya, 2010, and seeking enforcement of Articles 20(1), 22(1) and 23(3). The respondent, China Henan International Corporation Group Company Limited, through its advocates, filed a reply to the petition dated 11th September 2023 on 12th September 2023. In a brief ruling delivered on 26th October 2023, GMA Ongondo, J, held that the petition was wrongly brought as an Environment and Planning civil case. The court bore in mind the distinction between a matter that is struck out and one that is dismissed, citing Ngoni Matengo Cooperative Marketing Union Limited v Ali Mohammed Osman (1959) EA 577. Opting for striking out rather than dismissal, the court struck out the petition and made no orders as to costs. The ruling is notably terse: it gives no reasons for concluding the petition was wrongly brought, does not engage with the respondent's reply, and does not address the merits of the alleged rights violations. The practical effect is that the petition is at an end, though striking out rather than dismissal may carry different consequences for any attempt to refile.
Key legal issues
#01
Whether a petition wrongly filed as an Environment and Planning civil case should be struck out
Holding
The petition was wrongly filed and was struck out, with no orders as to costs
Reasoning
The court noted the petition dated 1st October 2023 and lodged on 3rd August 2023 was wrongly brought as an Environment and Planning civil case. Bearing in mind the distinction between striking out and dismissal, the court opted to strike out the petition rather than dismiss it, and made no order as to costs.
Legal principles established
#- A distinction exists between a matter that is struck out and one that is dismissed
Court orders
#- 1.The petition, which was wrongly filed, is struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Articles 20(1), 22(1), 23(3), 42, 43(1), 69(2) and 70(c) of the Constitution of Kenya, 2010 (as invoked in the petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kongo v China Henan International Corporation Group Company Limited", Case Analysis (2023). Environment & Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21100/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.