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ELCDismissedConstitutional Petition (Malindi) – Petition dated 21st July 2023, filed 24th July 2023· [2024] KEELC 6222 (KLR)

Rhigho v Hiriba & 6 others (Constitutional Petition E001 of 2023) [2024] KEELC 6222 (KLR)

Environment and Land Court of Kenya
26 September 2024
EME. K. Makori
2,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court dismissed a landowner's constitutional petition, ruling that ownership disputes must go through ordinary land processes, not the Constitution.

What this practically means

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Executive summary

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The Petitioner, Said Bwanaidi Rhigho, sought declarations that his family (the Ali Righos) own approximately 62 acres of ancestral land along Tana River, an order compelling the National Land Commission to demarcate and register the land, and an order barring the Inspector General of Police from interfering with their possession. The 2nd to 4th Respondents argued the Petition was sub judice (given pending Malindi ELC No. 78 of 2022 over the same ownership), res judicata a prior petition struck out by Odeny J. in 2023, and otherwise defective. The 6th and 7th Respondents objected that the court could not grant orders for non-parties, that ownership was unproven, and that an order against the Inspector General would amount to a blanket moratorium on criminal investigation. The court framed four issues: the constitutional petition threshold, sub judice/res judicata, sustainability of the orders sought, and costs. Holding the Petition fatally defective for want of a verifying affidavit and authority from the clan members it purported to represent, and failing the Anarita Karimi Njeru precision test, Makori J. further held the ownership dispute was sub judice and an abuse of process, and that constitutional avoidance required the Petitioner to pursue the pending civil suit or statutory processes under the Land Adjudication Act. The reliefs were held unavailable and the Petition was dismissed with costs on 26th September 2024.

Key legal issues

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01

Whether the Petition met the constitutional petition threshold

Holding

It did not; the Petitioner failed the Anarita Karimi Njeru test of precision and lacked authority from the persons he purported to represent

Reasoning

The Petition pleaded for the Ali Righo family/clan without a filed authority, lacked a verifying affidavit, and did not plead with precision the constitutional provisions infringed and the manner of infringement. The court held ownership claims are for ordinary courts, not constitutional petitions.

02

Whether the Petition was sub judice and res judicata

Holding

Yes; the same ownership issues are pending in Malindi ELC No. 78 of 2022 and a similar petition was already struck out in 2023

Reasoning

The pendency of Malindi ELC No. 78 of 2022 over ownership of the same land makes the Petition sub judice, and Constitutional Petition E31 of 2021 between the same parties and issues was struck out by Odeny J., making this a 'rematch' and an abuse of process.

p. 4
03

Whether the orders sought were sustainable

Holding

They were not; the court cannot issue orders in favour of non-parties, ownership was unproven, and an order against the IG would bar criminal investigation

Reasoning

The Petitioner sought orders for the family/clan without authority, did not prove ownership of unregistered ancestral/community or Trust Land, and the order against the Inspector General would act as a blanket moratorium on criminal investigation and arrest.

p. 2

Legal principles established

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  • A party with an alternative statutory or civil remedy must exhaust it before invoking constitutional jurisdiction (constitutional avoidance)
  • Disputes of land ownership are matters for ordinary courts and do not attract constitutional protection absent crystallised rights
  • A petition re-litigating matters struck out in an earlier petition, while a civil suit on the same subject is pending, is an abuse of court process

Court orders

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  1. 1.The Petition dated 21st July 2023, filed in Court on 24th July 2023, is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActChapter 284 Laws of Kenya
  • Land Registration Actsections 25, 26 and 26(1)(a) & (b)
  • Constitution of Kenyanot specified

Cases cited (7)

  • Anarita Karimi Njeru v Republic
    [1979] KLR 154; [1980] KLR 154; [1979] eKLR
  • Rhigho (On his own behalf and on behalf of the Uta Clan/Ali Rhigho Family) v Hiriba & 6 others
    (Constitutional Petition E31 of 2021) [2023] KEELC 16666 (KLR) (27 March 2023)
  • KKB v SCM & 5 others
    [Constitutional Petition 014 of 2020] [2022] KEHC 289
  • Sports and Recreation Commission v Sigittarious Wrestling Club & another
  • Robert Bonaya & another v Samuel Hamena Mtetemo
    [2021] eKLR
  • Naitore M'iburi & another v Attorney General & 2 others; Sebastian Kaaria (Interested Party)
    ELC Petition No.8 of 2018
  • Michael Babwoya Bahola & 11 others v Ali Said Rhigho & 9 others
    Malindi ELC Land No. 78 of 2022
Jurisdiction invoked
Constitutional petition jurisdiction of the Environment and Land Court (Constitution of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rhigho v Hiriba & 6 others (Constitutional Petition E001 of 2023) [2024] KEELC 6222 (KLR)", Case Analysis (2024). Constitutional Petition (Malindi) – Petition dated 21st July 2023, filed 24th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6222/eng@2024-09-26

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