Murambi & 2 others (Suing on Behalf of the Estate of the Late Vincent Wanyonyi Murambi) v County Government of Bungoma & another (Petition 15 of 2016) [2024] KEELC 1444 (KLR)
The bottom line
#A family's land dispute against Bungoma County and Kibabii University failed because they sued as a constitutional petition instead of an ordinary trespass case, and lacked evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the requirements for a constitutional petition
No - the claim was a trespass claim in tort dressed as a constitutional petition and should have been pursued as a civil claim
The court held that constitutional petitions must demonstrate precisely how and by whom rights were infringed, and that where an alternative statutory/civil remedy exists it should be pursued first. Following Anarita Karimi Njeru and Patrick Mbau Karanja, the court found the dispute was essentially a private-law trespass claim against whomsoever entered the land, and invoking the Bill of Rights in such matters would dilute its sanctity.
Whether the petitioners proved the alleged trespass and constitutional violations
No - the petitioners failed to discharge the burden of proof under sections 107, 108 and 109 of the Evidence Act
The petitioners alleged the respondents owned parcel 1660 and deployed county machinery, but produced no certificate of search, no registration numbers of the alleged earthmovers, and did not call the eyewitness relative who informed them of the activities, leaving hearsay. The burden of proof never shifted to the respondents and the case was built on mere speculation.
Whether damages (general, special, exemplary) were payable
No - no damages were proved; special damages were neither strictly pleaded nor proved and exemplary damages could not follow
The alleged destruction of crops was not supported by any report from an agricultural officer assessing the damage. Special damages must be strictly pleaded and proved, which was not done. Having failed to prove general and special damages, exemplary damages, which are awarded only in limited instances, could not be granted.
Who bears the costs
Costs follow the event; the public-interest exception in Rule 26 did not apply
While Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 gives the court discretion on costs and requires access to court, the court held that the questions raised did not meet the criteria for public interest litigation which would override the general principle that costs follow the event under section 27 of the Civil Procedure Act.
Legal principles established
#- A constitutional petition must set out with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement
- The Bill of Rights should not be invoked where other remedies lie; purely civil matters between private parties should follow ordinary civil procedure
- Evidence must flow from the pleadings; a court cannot adjudicate on matters not raised by the parties
- Special damages must be strictly pleaded and proved
Court orders
#- 1.The petitioners' petition dated 30th December, 2016 is dismissed
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Articles 22(1), 23 and 165(3) of the Constitution of Kenya 2010; petition under Articles 28, 31, 40, 43(1)(c), 47 and 50(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murambi & 2 others (Suing on Behalf of the Estate of the Late Vincent Wanyonyi Murambi) v County Government of Bungoma & another (Petition 15 of 2016) [2024] KEELC 1444 (KLR)", Case Analysis (2024). Petition dated 30th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1444/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.