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ELCStruck OutPetition dated 4th March 2024, as amended on 6th March 2024· [2025] KEELC 4160 (KLR)

Ekipor v Chief Magistrate Isiolo Law Courts & 2 others (Constitutional Petition 2 of 2024) [2025] KEELC 4160 (KLR)

Environment and Land Court of Kenya
19 May 2025
6,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a constitutional petition challenging a magistrate court ruling, confirming appeals, reviews, or setting aside are the only proper remedies.

What this practically means

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Executive summary

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The petitioner filed a constitutional petition alleging that the proceedings of 6th February 2024 and the judgment of 5th March 2024 in Isiolo CMC ELC No. 96 of 2015, delivered without hearing her after her advocate's engagement elsewhere, violated Articles 10, 47, 50 and 159 of the Constitution and Section 4 of the Fair Administrative Action Act. She sought declarations, certiorari to quash the proceedings and judgment, an order for a trial de novo, damages and costs. Following her eviction on 24th November 2024, she applied by notice of motion dated 27th January 2025 for leave to re-amend the petition to join the OCS Isiolo and the County Commissioner and to add reliefs for damages for demolition and reinstatement. The respondents opposed: the 1st and 2nd respondents argued the eviction flowed from a lawful court decree and the petition offended the doctrines of exhaustion and constitutional avoidance; the 3rd respondent argued non-compliance with Order 8 Rule 7, abuse of process, lack of nexus with intended parties, and that an appeal was the proper remedy. The court framed two issues. On the first, it held that judicial proceedings may be challenged only by appeal, review or setting aside, not by constitutional petition, and that the statutory remedies were efficacious, so the petition was premature, barred and an abuse of process. On the second, it held an amendment cannot salvage a null suit. The court dismissed the application for leave to amend and struck out the petition, awarding costs to the respondents.

Key legal issues

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01

Whether the petition challenging proceedings and judgment in Isiolo CMC ELC No. 96 of 2015 is barred by the doctrine of exhaustion and constitutional avoidance

Holding

Yes - the petitioner should have pursued review, setting aside or appeal under section 79 of the Civil Procedure Act; the petition is premature, barred, and an abuse of due process

Reasoning

The court distinguished judicial proceedings from quasi-judicial proceedings: judicial review under sections 8 and 9 of the Law Reform Act or the Fair Administrative Action Act is available only for quasi-judicial action. Judicial proceedings are challengeable solely by appeal, review or setting aside. The statutory mechanisms were held to be effective and efficacious, and the dispute fell outside the exemptions recognised in the Ramogi case.

p. 6
02

Whether the application for leave to amend the petition should be allowed

Holding

No - dismissed, because the underlying petition is legally untenable and an amendment cannot salvage a suit that is a nullity ab initio

Reasoning

While amendments serve to bring out the real questions in controversy, the court held that an amendment should only be granted where a suit is capable of redemption. Since the petition itself is barred by exhaustion and constitutional avoidance, the proposed amendment to join the OCS Isiolo and the County Commissioner and to add reliefs would be futile and vain. Courts do not act in futility or vanity.

p. 11

Legal principles established

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  • Judicial proceedings and decisions of a court of law can only be challenged by review, setting aside or appeal as prescribed by law, and not by way of a constitutional petition
  • Where an established statutory dispute resolution mechanism exists, it must be pursued and exhausted before invoking the constitutional jurisdiction (doctrine of exhaustion and constitutional avoidance)
  • An amendment to pleadings can only be allowed where there is a semblance of a suit in being; an amendment cannot save a suit that is a nullity

Court orders

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  1. 1.The Application dated 27th January 2025 be and is hereby dismissed
  2. 2.The amended petition dated 6th March 2024 be and is hereby struck out
  3. 3.Costs of the Application and the petition be and are hereby awarded to the Respondents
  4. 4.The Costs in terms of clause (iii) shall be agreed upon and in default, be taxed in the conventional manner
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution (petition invoking Articles 10, 47, 50 and 159 and Section 4 of the Fair Administrative Action 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, "Ekipor v Chief Magistrate Isiolo Law Courts & 2 others (Constitutional Petition 2 of 2024) [2025] KEELC 4160 (KLR)", Case Analysis (2025). Petition dated 4th March 2024, as amended on 6th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4160/eng@2025-05-19

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