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ELCStruck OutPetition dated 14th January, 2021

AWG v DNK (Deceased Represented by His Personal Representatives) & another; DMG (Interested Party) (Environment and Land Petition 4 of 2022) [2025] KEELC 4834 (KLR)

Environment and Land Court
24 June 2025
2,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow's constitutional petition over a matrimonial home held by a company was struck out because the Environment and Land Court had no jurisdiction.

What this practically means

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Executive summary

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The Petitioner, widow of the deceased 1st Respondent, petitioned seeking a declaration that she holds occupational rights over LR Nairobi/Block 110/111 ('the suit land') - claimed as the matrimonial home though registered in the name of the 2nd Respondent company - and an order restraining the Respondents and Interested Party (the deceased's son, who received the deceased's 70% shareholding) from dealing with it. She held 30% shares in the company. A consent judgment recorded in mediation was set aside after the Interested Party was joined. The dispute was canvassed by written submissions. The Interested Party and 2nd Respondent contended the dispute concerns company shareholders and lies with the High Court Commercial Division, and that the petition ballooned non-existent constitutional issues. The Court framed three issues: whether the petition met the constitutional threshold, whether the Court had jurisdiction, and whether it was merited. Applying Anarita Karimi Njiru, Mumo Matemo and Kenya Bus Services, the Court held the constitutional issues were not properly framed and the dispute fell under the Matrimonial Property Act and Companies Act, not the ELC. Section 13 of the Environment and Land Court Act does not confer jurisdiction over shareholder disputes, so the Court lacked jurisdiction and declined to address the private law issues. The petition was struck out with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition meets the threshold of a Constitutional Petition.
  2. 2.Whether this Court has jurisdiction to handle this matter.
  3. 3.Whether the Petition is merited.

Key legal issues

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01

Whether the Petition met the threshold of a constitutional petition

Holding

It did not; the constitutional issues were not properly framed with precision and the dispute is essentially a private law matrimonial/company matter.

Reasoning

The Court applied Anarita Karimi Njiru and Mumo Matemo on precision in framing constitutional petitions, and Kenya Bus Services on the horizontal/vertical application of rights. The fulcrum of the dispute was ownership of land registered in a company's name, governed by the Matrimonial Property Act and Companies Act, not constitutional enforcement against private parties.

p. 5
02

Whether the ELC had jurisdiction

Holding

No; the suit land is registered in a company and the dispute concerns company shareholders, which the ELC has no jurisdiction to determine.

Reasoning

The suit land is registered in the name of the 2nd Respondent company. Disputes relating to companies and their shareholders are governed by their Memorandum and Articles of Association and lie with the High Court Commercial Division. Section 13 of the Environment and Land Court Act does not confer jurisdiction over shareholder disputes.

p. 6
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Whether the Petition was merited

Holding

The Petition was unmerited and was struck out, the Court declining to delve into the private law issues raised.

Reasoning

Having found the issues governed by private law properly before the High Court Commercial or Family Division, the Court declined to determine them, holding the Petitioner should have filed in one of those courts rather than as a constitutional petition.

p. 6

Legal principles established

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  • A petitioner seeking constitutional redress must state the claim with precision, identifying the constitutional provisions violated (Anarita Karimi Njiru principle).
  • Fundamental rights under the Constitution are principally available against the State; private disputes between individuals are redressed under private law.
  • Section 13 of the Environment and Land Court Act does not confer jurisdiction on the ELC to handle disputes revolving around shareholders of companies.

Court orders

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  1. 1.The Petition is struck out.
  2. 2.Each party to bear their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, Section 13

Relief refused

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Declaration that the Petitioner has occupational rights over the suit land which cannot be terminated or defeated by the Respondents

The dispute falls under private law (Matrimonial Property Act and Companies Act) and the Court lacks jurisdiction; the Petition was struck out.

p. 6

Order prohibiting and interdicting the Respondents from dealing with the matrimonial home

Not determined on merits; the petition did not meet the constitutional threshold and the ELC lacks jurisdiction over company/shareholder disputes.

p. 5

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is my considered view that the fulcrum of the dispute herein falls within the ambit of Matrimonial Property Act as well as the Companies Act and not the Environment and Land Court
p. 5Jurisdiction – dispute is private law, not land or constitutional
Section 13 of the Environment and Land Court Act, which stipulates jurisdiction of the ELC does not confer jurisdiction of this Court to handle disputes revolving around Shareholders of companies
p. 5Jurisdiction – ELC cannot entertain shareholder disputes
In the foregoing, I find that the Petition is unmerited and will proceed to strike it out.
p. 6Disposition – petition struck out
Each party to bear their own costs.
p. 6Costs order

Issues in the judgment

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minor

The judgment cites 'Article 6 (1) (h)' of CEDAW as the basis of the Petitioner's claim; the numbering appears erroneous within the judgment itself.

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, "AWG v DNK (Deceased Represented by His Personal Representatives) & another; DMG (Interested Party) (Environment and Land Petition 4 of 2022) [2025] KEELC 4834 (KLR)", Case Analysis (2025). Petition dated 14th January, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4834/eng@2025-06-24

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