Baishe & 3 others v Madi (Constitutional Petition 20 of 2021) [2025] KEELC 254 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition met the threshold of a constitutional petition
It did not; it did not plead constitutional issues with the required precision and was a disguised appeal against the Kadhi's Court findings
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.
Whether the petition was an abuse of court process
Yes - it was activated as a conveyor belt to ventilate issues that should have been settled on appeal
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.
Whether the Kadhi's Court had jurisdiction over property not part of a deceased Muslim's estate
Not determined on the merits; the petition was dismissed for being an abuse of process
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.
Legal principles established
#- 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
#- 1.The current petition is dismissed
- 2.The Petitioners shall pay the costs of the petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.