Marete v CECM Lands Physical Planning Urban Development, Housing and Public Works & another (Petition E008 of 2024) [2024] KEELC 6916 (KLR)
The bottom line
#The Environment and Land Court in Meru dismissed a landowner's constitutional challenge over Majengo estate plots because he had no expert evidence proving the alleged illegal resurvey.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner had standing to sue on his own behalf and on behalf of Majengo residents without written authority
As legal administrator of the estate, chairman of the Majengo community and a resident land user, he had the right to bring the petition notwithstanding lack of written authority
The petitioner wore multiple capacities - administrator, chairman of the residents, and resident land user. The court found these capacities sufficient to sue on his own accord and for other residents, even without written authority from the plot owners.
Whether the petitioner was obliged to exhaust internal mechanisms under PLUPA
No, because the respondents did not produce any appealable decision of a liaison committee, and public participation forums failed to resolve the complaints
Although a liaison committee exercises primary adjudicatory jurisdiction under PLUPA, the respondents did not place before the court any decision the petitioner could have appealed. The complaints were raised in writing from 2016 and consultation meetings failed to resolve them, so exhaustion was not a bar.
Whether the petition raised a constitutional question and proved a violation of constitutional property rights
The petition raised constitutional issues regarding property rights under Article 40(3)(b), but the petitioner failed to prove the alleged infringement
Deprivation of property for a public purpose must accord with the Constitution and an Act of Parliament, with compensation and access to court. However, the petitioner produced no expert reports, survey reports, or evidence from surveyors, registrars or engineers to demonstrate that the access road exceeded the existing survey plans or encroached on private plots. Allegations of a 2017 resurvey were also unproven; the survey, planning and issuance of titles in 2017 were done by national government organs.
Whether the petition met the standards of precision required of constitutional petitions
The petition was haphazardly drafted and imprecise, though the annexures enabled the respondents to respond
Citing Anarita Karimi Njeru and Mumo Matemu, the court emphasized precision, clarity and specificity in constitutional petitions, including a link between the aggrieved party, the constitutional provisions infringed and the reliefs sought. The petition in this case was found to be drafted haphazardly, though its annexures allowed the respondents to answer the complaints.
Legal principles established
#- A constitutional question is one whose resolution requires the interpretation of the Constitution rather than of a statute; not every violation of the law must be raised as a constitutional issue where a statutory remedy exists
- A party alleging breach of a constitutional right or freedom must prove it with tangible and cogent evidence
- Alternative statutory dispute-resolution mechanisms must be exhausted before resorting to a constitutional petition
Court orders
#- 1.The petition is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition for enforcement of fundamental rights, Article 40 raised; Mutunga Rules 4 & 10)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marete v CECM Lands Physical Planning Urban Development, Housing and Public Works & another (Petition E008 of 2024) [2024] KEELC 6916 (KLR)", Case Analysis (2024). Petition dated 20.5.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6916/eng@2024-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.