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ELCDismissedPetition at Malindi (Environment and Land Court) – successor to Baishe & 3 others v Madi [2022] KEELC 3722 (KLR) petition· [2025] KEELC 254 (KLR)

Baishe & 3 others v Madi (Constitutional Petition 20 of 2021) [2025] KEELC 254 (KLR)

Environment and Land Court
29 January 2025
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a family's land dispute petition, ruling it was really a disguised appeal against a Kadhi's Court decision, not a genuine constitutional case.

What this practically means

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Executive summary

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The four Petitioners, members of one family, petitioned the Environment and Land Court at Malindi against Umi Famau Madi, seeking declarations that their rights to property under Article 40 of the Constitution were being breached by the Kadhi's Court, that they were the lawful owners of an unregistered approximately 6-hectare parcel at Mtaani, Mbwajumwali, Lamu East, that the parcel not being part of a deceased Muslim's estate could not be adjudged by the Kadhi's Court, and an injunction against eviction. The dispute stemmed from Mombasa Kadhi's Succession Cause No. 180 of 2014, in which the suit land was treated as part of the estate of Hassan Urema Hassan and Inyashe Kale Bwanaheri and the Kadhi's decree was executed, evicting the Petitioners. The Petitioners' appeals were dismissed by Thande J (17 January 2020) for delay, and by Onyiego J (11 June 2021) as abusive duplication. The Respondent contended the petition was an abuse of process, estopped and res judicata, noting a preliminary objection on the same issue had been raised before Odeny J and reserved. Framing five issues, Makori J applied the Anarita Karimi Njeru threshold, held the petition did not raise genuine constitutional issues but was an 'appeal reincarnate' and a conveyor belt to circumvent prior decisions, and was therefore an abuse of court process. The petition was dismissed with costs, with the Court of Appeal noted as the still-open avenue.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did not; it did not plead constitutional issues with the required precision and was a disguised appeal against the Kadhi's Court findings

Reasoning

The Court applied the Anarita Karimi Njeru standard, holding the petition sought to overturn the Kadhi's Court distribution of the estate rather than raise genuine constitutional questions. The Petitioners had already pursued and lost appeals before Thande J and Onyiego J, and the Court was not told of any subsequent Court of Appeal outcome. The petition was thus an 'appeal reincarnate' violating the constitutional pleading threshold.

02

Whether the petition was an abuse of court process

Holding

Yes - it was activated as a conveyor belt to ventilate issues that should have been settled on appeal

Reasoning

Given the history - Mombasa Kadhi's Succession Cause No. 180 of 2014, dismissed appeals (Mombasa Appeal No. 5 of 2018 dismissed by Thande J on 17 January 2020; Mombasa Appeal No. 4 of 2020 dismissed by Onyiego J on 11 June 2021 as abusive), and an executed Kadhi's decree - the petition merely re-stated adjudicated matters. The Court also noted a preliminary objection on the same issue had been raised before Odeny J and reserved for final decision.

p. 4
03

Whether the Kadhi's Court had jurisdiction over property not part of a deceased Muslim's estate

Holding

Not determined on the merits; the petition was dismissed for being an abuse of process

Reasoning

Although framed as an issue, the Court did not rule substantively on the Kadhi's Court's jurisdiction. The petition's disposition on threshold and abuse grounds rendered this question unnecessary. The Court noted the decree had been executed and that the proper avenue was an appeal to the Court of Appeal, not a constitutional petition.

p. 3

Legal principles established

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  • A constitutional petition must set out with reasonable precision the complaint, the constitutional provisions infringed and the manner of infringement (Anarita Karimi Njeru threshold)
  • A petition that merely re-litigates issues settled in prior adjudication is an abuse of court process
  • Where an appellate avenue remains open, a party cannot circumvent an adverse decision by way of a constitutional petition

Court orders

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  1. 1.The current petition is dismissed
  2. 2.The Petitioners shall pay the costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (4)

  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Gideon Sitelu Konchella v Daima Bank Ltd
    [2013] eKLR
  • Mobil Kitale Service Station v Mobil Oil Kenya Limited & another
    [2004] eKLR
  • Baishe & 3 others v Madi
    [2022] KEELC 3772 (KLR)
Jurisdiction invoked
Article 40 of the Constitution of Kenya invoked by the Petitioners; petition under the Constitution heard by the Environment and Land Court

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, "Baishe & 3 others v Madi (Constitutional Petition 20 of 2021) [2025] KEELC 254 (KLR)", Case Analysis (2025). Petition at Malindi (Environment and Land Court) – successor to Baishe & 3 others v Madi [2022] KEELC 3722 (KLR) petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/254/eng@2025-01-29

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