Kung’u & 3 others (Suing as the administrators of the Estate of Michael Ng’ang’a Njoroge) v Kenya Railways Corporation (Environment & Land Petition 7 of 2023) [2024] KEELC 4459 (KLR)
The bottom line
#The Environment and Land Court struck out a Kshs. 76 million constitutional petition against Kenya Railways, ruling ordinary property-damage claims belong in a civil suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition raised valid constitutional issues
No; the petition was an ordinary property-damage claim dressed as a constitutional petition and was struck out without prejudice to a civil suit.
The court found the grievance was purely proprietary - loss from partial demolition - for which a civil suit for damages is the appropriate vehicle. Relying on constitutional-avoidance authority including Kenya Bus Services, Oshwal Academy, James Kuria and Murage, it held the Constitution should not be a thoroughfare for common grievances, and struck out the petition without prejudice to a civil suit.
Entitlement to reliefs sought
Not entitled; the reliefs fell with the struck-out petition.
Having found the petition raised no valid constitutional issues and was unfit for adjudication as a petition, the court held the Petitioners could not be granted the declarations, damages and injunction sought. It declined to determine the merits, deeming it unnecessary after the threshold finding.
Costs
Respondent awarded costs, costs following the event under Section 27 of the Civil Procedure Act.
Applying the general rule that costs follow the event and that a successful party should ordinarily get costs absent good reason to depart, the court found no reason to depart and awarded the Respondent costs of the petition.
Legal principles established
#- Not every infringement of a proprietary right warrants redress by constitutional petition where an adequate civil remedy exists.
- Where an alternative statutory or civil remedy exists, that remedy should be pursued rather than a constitutional petition.
Court orders
#- 1.The petition dated 01.02.2022 is struck out with costs to the Respondent, without prejudice to the right of the Petitioners to file a normal civil suit for vindication of their property rights
- Jurisdiction invoked
- Articles 22, 23, 165 and 258 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kung’u & 3 others (Suing as the administrators of the Estate of Michael Ng’ang’a Njoroge) v Kenya Railways Corporation (Environment & Land Petition 7 of 2023) [2024] KEELC 4459 (KLR)", Case Analysis (2024). ELC Petition No. 7 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4459/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.