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ELCStruck OutEnvironment & Land Petition E002 of 2023· [2023] KEELC 21993 (KLR)

Mwangi v Kawendo Investments Limited & 4 others

Environment and Land Court at Narok
5 December 2023
CMC G Mbogo
2,343 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner moved the Environment and Land Court at Narok by Notice of Motion dated 27th January 2023 under Article 40 of the Constitution and the Mutunga Rules, seeking pending-trial injunctions restraining the 2nd respondent from disposing of title number CisMara/Olopito/2099 and restraining the 4th respondent from registering further dealings or, alternatively, compelling registration of a caveat. He deposed that in 2002 he bought the land from the 1st respondent for Kshs.25,000/-, paid in full, took possession and developed it, only to discover on an official search that a certificate of title had been fraudulently issued to Siemeto Ole Siempere (whose estate the 2nd respondent administers) on 17th November 2006, allegedly in collusion with the land officials, and that the suit land corresponded to plot Olopito 2087 on the adjudication map. The 1st and 2nd respondents opposed via grounds of opposition, contending the petition was academic, time-barred, did not meet the Anarita Karimi threshold, and that the petitioner was allocated a different plot (CisMara/Olopito/2100) with title. The 3rd, 4th and 5th respondents likewise urged the dispute was civil, not constitutional. The court framed three issues: whether the petition raised constitutional issues; entitlement to injunction; and costs. Relying on Edward Karanja Chogo and Gabriel Mutava, it held the claim was an ordinary ownership/fraud dispute best litigated by plaint with oral evidence, not constitutional litigation. It struck out both the application and the petition with costs to the respondents.

Key legal issues

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01

Whether the petition raised constitutional issues warranting determination by the Environment and Land Court in its constitutional jurisdiction

Holding

No - the dispute is an ordinary claim of ownership and interest in land through purchase, best determined by a plaint with oral evidence

Reasoning

The court examined the application and petition and found the claim was essentially one of ownership of land purchased from the 1st respondent, with allegations of fraud in the issuance of a certificate of title to the 2nd respondent. Such questions of title and fraud require evidence and testimony in an ordinary civil claim, not constitutional litigation. Relying on Chogo and Mutava, the court held the petition did not meet the constitutional threshold.

p. 5
02

Whether the petitioner was entitled to temporary injunction orders

Holding

The question fell away because the application and petition were struck out for lack of constitutional issues

Reasoning

Although the court set out Order 40 Rule 1 of the Civil Procedure Rules on temporary injunctions, it did not reach the merits of the Giella-type test. Having concluded that the petition was an ordinary land claim improperly clothed as a constitutional petition, the court struck out both the application and the petition, mooting the injunction question.

p. 5

Legal principles established

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  • Constitutional litigation should not be used for disputes that can be adequately resolved in statutory or ordinary civil forums; the first port of call should be suitable statutory forums
  • A constitutional petition is meant for clear constitutional matters ascertainable on the pleadings; where further facts are needed, the petitioner should revert to a civil claim

Court orders

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  1. 1.The Notice of Motion Application and petition both dated 27th January, 2023 are struck out
  2. 2.Costs of the application and petition awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 40, 47, 63
  • Fair Administrative Action ActNo. 4 of 2015
  • Land Registration ActNo. 3 of 2012
  • Civil Procedure RulesOrder 40 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 13 & 19

Cases cited (13)

  • Anarita Karimi versus Republic (No.1)
    1979 KLR 154

    Threshold for pleading constitutional violations

  • Mumo Matemu versus Trusted Society of Human Rights Alliance
    [2014] eKLR

    Threshold for constitutional petitions

  • Virginia Edith Wambui versus Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987 [1987] eKLR

    Injunction principles

  • Joseph Siro Mosiomo versus Housing Finance Company of Kenya
    [2008] eKLR

    Injunction principles

  • Kennedy Otieno Odiyo & 12 Others versus Kenya Electricity Generating Company Limited
    [2010] eKLR

    Injunction principles

  • Mrao versus First American Bank of Kenya Limited & 2 Others
    [2003] eKLR

    Definition of prima facie case

  • Charles Kanyagia versus Alfred Musavi & Another
    [2020] eKLR

    Constructive trust/estoppel

  • Jammohammed (Suing as the executrix of the estate of Daniel Toroitich arap Moi) & 2 Others versus Chelugui & Another
    Civil Appeal 159 & 254 of 2019 (Consolidated) [2022] KECA 720 (KLR)

    Legitimate expectation

  • Chief Land Registrar & 4 Others versus Nathan Tirop Koech & 4 Others
    [2018] eKLR

    Right to seek enforcement of constitutional rights despite alternative remedies

  • Faustina Njeru Njoka versus Kimunye Tea Factory Limited
    [2022] eKLR

    Grounds of opposition not substantively responding to application

  • Reuben Mwongera M'itelekwa M'Mucheke Naituri alias M'itelekwa Mucheke versus Paul Kigea Nabea & 2 Others
    [2019] eKLR

    Elaborate statutory procedure for land contract disputes

  • Edward Karanja Chogo & 2 Others versus County Government of Kakamega
    [2018] eKLR

    Constitutional petitions for clear constitutional matters; revert to civil claim where facts needed

  • Gabriel Mutava & 2 Others versus Managing Director, Kenya Ports Authority
    [2016] eKLR

    Constitutional litigation not a panacea; statutory forums first

Jurisdiction invoked
Article 22(1) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); Articles 40, 47 and 63 invoked in the petition

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, "Mwangi v Kawendo Investments Limited & 4 others", Case Analysis (2023). Environment & Land Petition E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21993/eng@2023-12-05

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