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ELCStruck OutPetition dated 2023 (application dated 6th June 2023), Environment and Land Court, Malindi· [2024] KEELC 4706 (KLR)

Changi & another v Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 4 others (Environment and Land Constitutional Petition E022 of 2023) [2024] KEELC 4706 (KLR)

Environment and Land Court
6 June 2024
5,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi struck out a land ownership petition filed years too late, warning that renaming an old claim as a constitutional petition cannot revive it.

What this practically means

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Executive summary

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The 1st, 2nd, 4th and 5th Respondents raised a preliminary objection against a constitutional petition and notice of application dated 6th June 2023 in which the Petitioners sought an injunction, a declaration of ownership and judicial review orders over Plots 803 and 891 Mikahani/Mawemabomu/Chonyi Adjudication Section, Kilifi. The objection raised four limbs: want of jurisdiction, limitation, res judicata and want of locus standi. Makori J framed five issues, including the Mukisa Biscuits threshold and costs. The court traced the history of the dispute: the same parties had litigated the Minister's decision under Section 29 of the Land Adjudication Act in Malindi HCCC 39 of 2006 (Meoli J), where the suit was dismissed as a disguised judicial review claim filed out of time, and on appeal in Civil Appeal 7 of 2015, where the Court of Appeal reiterated that only judicial review could challenge the Minister's final decision. Holding that a constitutional petition could not be used to circumvent limitation periods, the court applied Kefa Were and Calvin Ouma Magare, finding the petition stale. It also found constructive res judicata on the KCB v Benjoh Amalgamated principles, and held the 1st Petitioner lacked locus standi for want of letters of administration, as previously found by Meoli J. Accordingly, the application and the entire petition were struck out with costs on 6th June 2024.

Key legal issues

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01

Whether the petition is time-barred

Holding

Yes - it is an attempt to circumvent limitation timelines by dressing a judicial review/civil claim as a constitutional petition

Reasoning

The High Court and Court of Appeal had previously held the Minister's decision under Section 29 of the Land Adjudication Act could only be challenged by judicial review within six months, or one year against government under the Government Proceedings Act. Filing a constitutional petition years later cannot cure the lapse; limitation applies even to rights enforcement petitions where there is inordinate delay.

p. 10
02

Whether the petition is res judicata

Holding

Yes - it suffers constructive res judicata having regard to the prior High Court suit and appeal between the same parties over the same subject matter

Reasoning

Although the earlier Malindi High Court suit was decided on procedure rather than merits, the same parties over the same adjudication dispute had their opportunity to raise all issues. Allowing them to re-craft the claim as a constitutional petition would be a manifest abuse of court process.

p. 10
03

Whether the Petitioners have locus standi

Holding

No - the 1st Petitioner, found in the earlier suit to lack letters of administration, equally lacks locus standi here

Reasoning

Meoli J had found the 1st Petitioner claimed through his deceased father and ancestors without letters of administration, the same handicap as the 3rd Respondent. That finding binds the present petition; one must be clothed with authority before instituting suit.

p. 10
04

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

Yes - the objections raised pure points of law apparent from the pleadings and prior judgments

Reasoning

The objections to limitation, res judicata and locus standi could be determined on the pleadings and the annexed prior judgments without ascertaining facts or exercising discretion, satisfying the Mukisa Biscuits test as restated by the Supreme Court in Jane Cheperenger.

p. 2

Legal principles established

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  • A preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Constitutional petitions enforcing fundamental rights are not wholly immune from limitation periods; inordinate delay may defeat an otherwise stale claim
  • Constructive res judicata bars relitigation of issues which could with due diligence have been raised in earlier proceedings

Court orders

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  1. 1.The pending application dated 6th June 2023 is struck out with costs
  2. 2.The entire petition is struck out with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22(1), 23, 24, 159(2), 159(2)(b)
  • Civil Procedure ActSection 7
  • Land Adjudication ActSection 29; Regulation 4(1)
  • Government Proceedings Act (Cap 40)Section 16
  • Limitation of Actions Actgenerally (Statute of Limitations)

Cases cited (19)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • DJC v BKL
    (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR)
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Chembe Katana Changi v Minister for Lands and Settlement & 4 Others
    Malindi High Court Civil Suit No. 39 of 2006 [2013] eKLR
  • Chembe Katana Changi v Minister for Lands & Settlement & 4 others
    Civil Appeal 7 of 2015 [2015] eKLR
  • Njue Ngai v Ephantus Njiru Ngai & another
    [2016] eKLR
  • Kefa Were v Benedict Chepkering
    [2018] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others
    [2010] eKLR
  • Hawo Shanko v Mohamed Uta Shanko
    [2018] eKLR
  • Safepak Limited v Wambega & 11 others
    [2019] eKLR
  • Nicholas Njeru v A-G & 8 Others
    [2013] eKLR
  • Republic v Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
  • Calvin Ouma Magare & 18 others v Director of Public Prosecutions & 4 others
    [2022] eKLR
  • James Kanyiita
  • Rawal v Rawal
    [1990] KLR 275
  • Abraham Kaisha Kanzila alias Moses Savala Keya t/a Kapco Machinery Services and Milamo Investments Limited v Government Central Bank of Kenya and 2 others
    Misc. Civil Application 1759 of 2004
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR
Jurisdiction invoked
Articles 22 and 23 of the Constitution (invoked by Petitioners); objections under Section 7 Civil Procedure Act, Limitation of Actions Act and Government Proceedings Act Cap 40

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, "Changi & another v Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 4 others (Environment and Land Constitutional Petition E022 of 2023) [2024] KEELC 4706 (KLR)", Case Analysis (2024). Petition dated 2023 (application dated 6th June 2023), Environment and Land Court, Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4706/eng@2024-06-06

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