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ELCStruck OutPetition dated 17th February 2023 (originally High Court Petition E001 of 2023, Kericho)· [2024] KEELC 4115 (KLR)

Leitich & 4 others v Attorney General & another (Environment & Land Petition 2B of 2023) [2024] KEELC 4115 (KLR)

Environment and Land Court
9 May 2024
MOM.C. Oundo
1,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land rights petition failed because it named no specific constitutional rights, lacked a supporting affidavit, and was filed in the wrong court.

What this practically means

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Executive summary

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The Petitioners, described as lay persons and beneficiaries of the estate of Kipkurui Maina, proprietor of Kericho/Kapkatet/483 from which they had been awarded parcels Kericho/Kapkatet/3272 to 3276, petitioned for an injunction restraining any organization from taking the land, compensation, loss of earnings and damages, alleging displacement connected with the construction of a police station. The 1st Respondent opposed through grounds of objection and written submissions, invoking the Anarita Karimi Njeru standard that constitutional violations be pleaded with precision, and contending that the petition identified no infringed articles, no particulars, and no supporting affidavit. The 2nd Respondent did not participate and the Petitioners filed no submissions. The court held, first, that the petition had been instituted in the High Court at Kericho which lacked jurisdiction, and following Boniface Waweru Mbiyu and Wamathu Gichoya, the order transferring it to the ELC was a nullity since an incompetent suit cannot be transferred. Secondly, the petition failed the Anarita Karimi Njeru threshold as it neither cited specific constitutional articles nor was supported by any affidavit. Thirdly, the Petitioners' failure to file submissions as directed evidenced lack of interest and prosecution. Out of consideration for the lay Petitioners, the court nonetheless struck out rather than dismissed the petition, with no costs. Judgment delivered via Microsoft Teams at Naivasha on 9th May 2024 by M.C. Oundo, Environment and Land Judge.

Key legal issues

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01

Effect of institution of suit in a court without jurisdiction

Holding

The suit was a nullity and the transfer order from the High Court to the ELC was itself a nullity

Reasoning

Relying on Boniface Waweru Mbiyu and Wamathu Gichoya, the court held that a suit filed before a court lacking jurisdiction is defective, incompetent and void, and cannot be transferred under Section 18 of the Civil Procedure Act. Since the petition was instituted in the High Court which lacked jurisdiction, the transfer directive was a nullity and no determination could issue on a non-existent suit.

p. 4
02

Pleading standard for constitutional petitions

Holding

The Petitioners failed to identify specific constitutional articles infringed or evidence of violation, contrary to the Anarita Karimi Njeru standard

Reasoning

A party alleging constitutional violation must set out with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement, supported by evidence. The petition neither cited specific Articles nor was supported by any affidavit, thus failing the required threshold for a constitutional petition.

p. 4
03

Failure to file submissions as directed

Holding

Non-filing of submissions was treated as failure to prosecute, justifying dismissal

Reasoning

The court had directed disposal by written submissions; only the 1st Respondent complied. The Petitioners' failure was deemed inertia, inordinate delay and lack of interest in prosecution, rendering the petition liable for dismissal.

p. 4

Legal principles established

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  • A matter filed in a court lacking jurisdiction is a nullity and cannot be transferred to a competent court

Court orders

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  1. 1.The Petition dated 17th February 2023 struck out with no costs

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles on fundamental rights and freedoms (not specifically enumerated in the petition)

Cases cited (7)

  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Leonard Otieno v Airtel Kenya Limited
    [2018] e KLR
  • Japheth Ododa Origa v Vice Chancellor, University of Nairobi & 2 Others
    [2018] eKLR
  • Manase Guyo & 260 Others v Kenya Forest Services
    [2016] eKLR
  • Boniface Waweru Mbiyu vs. Mary Njeri & Another
    [2005] eKLR
  • Wamathu Gichoya v Mary Wainoi Magu
    [2015] eKLR
Jurisdiction invoked
Article 162(2) Environment and Land Court jurisdiction; matter transferred from the High Court at Kericho under Section 18 of the Civil Procedure Act (transfer held a nullity)

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, "Leitich & 4 others v Attorney General & another (Environment & Land Petition 2B of 2023) [2024] KEELC 4115 (KLR)", Case Analysis (2024). Petition dated 17th February 2023 (originally High Court Petition E001 of 2023, Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4115/eng@2024-05-09

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