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ELCStruck OutNot stated in the excerpt provided· [2025] KEELC 3108 (KLR)

Ancient Inland Seas Limited v County Government of Mombasa & 5 others (Constitutional Petition 40 of 2021) [2025] KEELC 3108 (KLR)

Environment and Land Court
3 April 2025
JOJ. O. Olola
1,511 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a landowner's constitutional petition because an ordinary civil lawsuit, not a rights case, was the right way to resolve the dispute.

What this practically means

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Executive summary

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Ancient Inland Seas Limited, the registered proprietor of parcels Mainland North/Section VI/3995 and 2079 (said to be amalgamated into Plot No. Mainland North/Section VI/5049) at Kibarani, Mombasa, petitioned for declarations of ownership, a mandatory injunction to demolish structures erected on the land, a permanent injunction against trespass, damages for loss of use at Kshs 4,000,000 per month, and alternatively compensation of Kshs 268,000,000. It complained that the National Land Commission had upheld its title in 2019, yet the County Government of Mombasa, supported by Mombasa Cement Ltd, forcefully entered the land and constructed a recreational park, violating Article 40 of the Constitution, the Trespass to Land Act and fair administrative action. The County Government filed a preliminary objection dated 19th November 2024 arguing that the Amended Petition contravened the doctrine of constitutional avoidance and was incurably defective. The court, per J.O. Olola J, defined constitutional avoidance, applied the Supreme Court's exposition in Communications Commission of Kenya v Royal Media Services and Mativo J's exceptions in KKB v SCM, and Lenaola J's remarks in Uhuru Muigai Kenyatta v Nairobi Star Publications. It held the dispute was essentially proprietary and fully resolvable in the court's ordinary civil jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. The preliminary objection was upheld, the Amended Petition struck out, and each party ordered to bear its own costs.

Key legal issues

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Whether the constitutional petition offended the doctrine of constitutional avoidance

Holding

Yes. The dispute was founded on proprietary rights over land and no issue was discerned that could not be addressed in the court's ordinary civil jurisdiction, so the petition was struck out.

Reasoning

The court examined the pleadings and found the dispute centred on ownership of the suit parcels, a matter within its civil jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. Relying on Communications Commission of Kenya v Royal Media Services and Uhuru Muigai Kenyatta v Nairobi Star Publications, it held constitutional sanction should be reserved for really serious occasions where no ordinary remedy exists.

p. 4

Legal principles established

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  • Not every infringement or violation of a right qualifies to be taken as a constitutional petition; where a civil law remedy exists and the court can resolve the dispute in its ordinary civil jurisdiction, the doctrine of constitutional avoidance requires the constitutional route not to be taken
  • The doctrine of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis

Court orders

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  1. 1.The Amended Petition dated 15th July, 2024 is struck out
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Trespass to Land ActSection 3

Cases cited (6)

  • Communication Commission of Kenya & 5 Others –vs- Royal Media Services Ltd. & 5 Others
    (2014) eKLR
  • S –vs- Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
  • KKB –vs- SCM & 5 Others
    Constitutional Petition No. 14 of 2010 [2022] KEHC 289 KLR
  • Uhuru Muigai Kenyatta –vs- Nairobi Star Publications Limited
    (2013) eKLR
  • AG vs S.K. Dutambala
    Cr. Appeal No.37 of 1991
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Ancient Inland Seas Limited v County Government of Mombasa & 5 others (Constitutional Petition 40 of 2021) [2025] KEELC 3108 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3108/eng@2025-04-03

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