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ELCStruck OutEnvironment and Land Constitutional Petition E012 of 2023· [2023] KEELC 21412 (KLR)

Farid Faraj Awadh Bamaftah & another v Cabinet Secretary, Ministry of Lands, Public Works and Housing and Urban Development & 7 others

Environment and Land Court
7 November 2023
7,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st and 2nd Petitioners filed a constitutional petition alleging that the Respondents illegally surveyed an already surveyed area, created the Mtwapa/Maweni Settlement Scheme and issued duplicate titles over land the Petitioners claimed to own, violating their constitutional rights including Article 40 property rights. They also sought conservatory orders by a Notice of Motion dated 9th May 2023, some of which had been granted on a temporary basis. The Attorney General, as 8th Respondent, raised a Notice of Preliminary Objection dated 26th May 2023 arguing that the petition offended the doctrine of constitutional avoidance, was essentially a simple land claim disguised as a constitutional petition, and could properly be decided on another basis. The court crystallised three issues: whether the objection met the threshold of a preliminary objection; whether the petition offended constitutional avoidance; and costs. Applying the Mukisa Biscuits line of authorities, the court held the objection raised pure points of law. On avoidance, relying on Communications Commission of Kenya v Royal Media Services and related authorities, it distinguished Zinj Limited and held the petition raised purely civil questions of land ownership and title issuance whose remedies lay in ordinary civil courts. It therefore sustained the objection, struck out the petition for offending the doctrine of constitutional avoidance, and awarded the Respondents the costs of both the petition and the objection.

Key legal issues

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01

Whether the objection was a proper preliminary objection

Holding

Yes - it raised pure points of law (constitutional avoidance) requiring no ascertainment of facts

Reasoning

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.

p. 11
02

Whether the Petition offended the doctrine of constitutional avoidance

Holding

Yes - the claim was purely a civil ownership dispute over land and should have been filed as an ordinary suit

Reasoning

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.

p. 12
03

Costs of the petition and the objection

Holding

Respondents entitled to costs for defending a needless petition

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.The Preliminary objection dated 26th May, 2023 is found to have merit and is hereby sustained
  2. 2.The Petition dated 9th May, 2023 as filed is struck out for offending the doctrine of Constitutional Avoidance
  3. 3.The Respondents have the costs of the Petition dated 9th May, 2023 and the Costs of the Preliminary objection dated 26th May, 2023

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 60(1)(b)
  • Environment and Land Court Act
  • Lands ActNo. 6 of 2012
  • Land Registration ActNo. 3 of 2012
  • Survey Act
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1) and (2)

Cases cited (21)

  • Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696
    (1969) EA 696

    Definition and test of a preliminary objection as a pure point of law

  • Nitin Properties Ltd vs Jagjit S. Kalsi & another
    Court of Appeal No. 132 of 1989 [1995-1998] 2EA 257

    Preliminary objection must be a pure point of law, no facts to be ascertained

  • United Insurance Company LTD vs Scholastica A Odera
    Kisumu HCC Appeal No. 6 of 2005 (2005) LLR 7396

    Preliminary objection must be based on a clear point of law, not disputed facts

  • In the matter of Siaya Resident Magistrate Court Kisumu
    HCC Misc. App No. 247 of 2003

    A preliminary objection cannot be raised if any fact has to be ascertained

  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR

    Scope, nature and meaning of a preliminary objection

  • Zinj Limited v The Attorney General & Others
    ELC Petition No. 2 of 2010 (Malindi); Supreme Court Petition No. 1 of 2020

    Petitioners relied on it as similar case on illegal scheme over titled land; court distinguished it

  • CNM v WMG
    (2018) eKLR

    Test for constitutional avoidance - whether the argument forces the court to consider constitutional rights

  • Southlake Panorama Limited v Kenya Electricity Company Limited & 3 Others
    [2021] eKLR

    Constitutional jurisdiction invoked under Articles 22(1) and 23

  • Shikara Limited Case

    Exceptional circumstances where exhaustion requirements need not apply

  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR

    Statutory provisions ousting court jurisdiction must be construed restrictively

  • Invesco Assurance Co. Ltd v MW (Minor suing thro' next friend and mother (HW)
    Nairobi Civil Appeal 151 of 2011 [2016] eKLR

    Definition of a conservatory order

  • Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others
    (2017) eKLR

    Threshold for conservatory orders - threatened violation and prima facie case with real danger

  • Sports and Recreation Commission v Sagittarius Wrestling Club and Anor
    2001 (2) ZLR 501 (S)

    Courts decline constitutional questions where remedy available on another basis

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR

    Principle of constitutional avoidance - court will not determine constitutional issue where matter decidable on another basis

  • S v Mhlungu
    1995 (3) SA 867 (CC)

    Where possible to decide a case without reaching a constitutional issue, that course should be followed

  • Ashwander v Tennessee Valley Authority
    297 U.S. 288, 347 (1936)

    Court will not decide a constitutional question if another basis of disposal exists

  • KKB v SCM & 5 others
    Constitutional Petition 014 of 2020 [2022] KEHC 289 (KLR)

    Doctrines of ripeness and constitutional avoidance shun constitutional issues where another legal course exists

  • Uhuru Muigai Kenyatta v Nairobi Star Publications Limited
    [2013] eKLR

    Where there is a remedy in civil law, a party should pursue that remedy

  • AG v S.K. Dutambala
    Cr. Appeal No. 37 of 1991

    Constitutional sanctions reserved for appropriate and really serious occasions

  • Jean Bosco Muhayimana & Another v Jimmy Irenge aka Jimmy Mwachugha & Others
    Mombasa Petition No. E002 of 2022 (unreported)

    Doctrine of avoidance - court declines matter resolvable through another mechanism

  • Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot
    [2021] eKLR

    Parties should not christen civil matters as constitutional petitions where civil remedy exists

Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya, 2010; Environment and Land Court Act

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, "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.