Farid Faraj Awadh Bamaftah & another v Cabinet Secretary, Ministry of Lands, Public Works and Housing and Urban Development & 7 others
The bottom line
#Kenya's Environment and Land Court struck out a land dispute filed as a constitutional petition, ruling ordinary civil suits—not petitions—are the right route for ownership claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection was a proper preliminary objection
Yes - it raised pure points of law (constitutional avoidance) requiring no ascertainment of facts
The court restated the Mukisa Biscuits test and related authorities: a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. It found the objection on constitutional avoidance satisfied this standard.
Whether the Petition offended the doctrine of constitutional avoidance
Yes - the claim was purely a civil ownership dispute over land and should have been filed as an ordinary suit
The court distinguished Zinj Limited, holding the petition raised issues of ownership of land and issuance of titles which are civil in nature with remedies available in ordinary civil courts. Since a civil remedy existed, the court declined to determine the constitutional issues and invoked the doctrine of avoidance, declining jurisdiction.
Costs of the petition and the objection
Respondents entitled to costs for defending a needless petition
Costs follow the event, subject to Rule 26 of the Mutunga Rules which requires the court not to hinder access to constitutional justice. Since the claim was a civil claim couched as a constitutional petition and ought not to have been filed in that court, the respondents were awarded costs of both the petition and the objection.
Legal principles established
#- A preliminary objection must be raised on a pure point of law with no facts to be ascertained
- Where a remedy exists in civil law, a court should decline to determine a constitutional issue under the doctrine of constitutional avoidance
Court orders
#- 1.The Preliminary objection dated 26th May, 2023 is found to have merit and is hereby sustained
- 2.The Petition dated 9th May, 2023 as filed is struck out for offending the doctrine of Constitutional Avoidance
- 3.The Respondents have the costs of the Petition dated 9th May, 2023 and the Costs of the Preliminary objection dated 26th May, 2023
- Jurisdiction invoked
- Article 22 and 23 of the Constitution of Kenya, 2010; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farid Faraj Awadh Bamaftah & another v Cabinet Secretary, Ministry of Lands, Public Works and Housing and Urban Development & 7 others", Case Analysis (2023). Environment and Land Constitutional Petition E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21412/eng@2023-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.