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MagistrateDismissedCivil Suit dated 04.10.2011 (Kehancha)· [2013] KEMC 105 (KLR)

Marwa v Nyamohanga & another (Civil Suit 23 of 2011) [2013] KEMC 105 (KLR)

Principal Magistrate's Court at Kehancha
22 November 2013
ALAloyce-Peter-Ndege
4,689 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the two defendants jointly and severally for the return of three heads of cattle and a calf, or their equivalent value of Kshs. 47,300/=, plus costs and interest, arising from the seizure of his cows on 01.04.2011 by community policing guards (sungu sungu). The 1st defendant's bar had been broken into and he reported the theft to community policing, whose investigations identified suspects, one of whom had sold the cows to the plaintiff. The group seized the cows and, at a meeting at Ikerege Chief's camp on 05.03.2011 which the plaintiff attended and at which he signed the minutes, resolved they be given to the 1st defendant as compensation. The 2nd defendant denied involvement in the seizure or the meeting. The plaintiff argued the defendants usurped judicial functions and breached his constitutional rights; the 1st defendant argued the suit was a ploy and that the claim was unproven. The court held it had no jurisdiction to interpret or enforce Article 159 of the Constitution or to determine the legality of the community policing process, that function belonging to the High Court under Article 165(1)(3)(d), though it opined the process was unfair and repugnant to justice. It further held the claim was special damages requiring specific pleading and proof, which the plaintiff failed to discharge, the Kshs. 47,300/= figure being unsupported by evidence. The suit was dismissed with each party bearing his own costs, the court noting the community policing group members should have been joined as parties.

Key legal issues

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01

Proof of special damages

Holding

The plaintiff failed to specifically plead and prove the Kshs. 47,300/= claim; the court could not pluck a figure 'from thin air'

Reasoning

The plaint alleged a global figure without breakdown per animal. At trial the plaintiff orally valued the cows at Kshs. 75,000/= without evidence, and PEXH. No. 3, an unsigned and ambiguous sale statement, gave different values. The requirement is mandatory and not saved by Article 159(2)(d) or sections 1A and 1B of the Civil Procedure Act.

p. 9
02

Jurisdiction over constitutional interpretation

Holding

This court could not interpret Article 159 or rule on the legality of the community policing process; only the High Court may do so

Reasoning

Counsel's arguments invoking Article 159 and the Preamble required interpretation of constitutional terms such as 'traditional dispute resolution mechanisms' and 'repugnant to justice'. That function belongs to the High Court under Article 165(1)(3)(d), particularly in the period of constitutional transition.

p. 6
03

Fairness of the community policing process

Holding

The court expressed the opinion that the process was unfair and repugnant to justice, but could not make a binding constitutional determination

Reasoning

The plaintiff was present, heard and signed the minutes of the community policing meeting which resolved the cows be given to the 1st defendant. The court noted the process contravened the plaintiff's rights to fair trial and property, but held a definitive ruling required High Court interpretation of Article 159.

p. 5
04

Parties to the dispute

Holding

The community policing group members should have been joined as the dispute revolved around their activities

Reasoning

The 1st defendant was merely an aggrieved individual who took his dispute to the group, and the 2nd defendant denied involvement in the seizure or the decision. The proper target of any challenge was the community policing group.

p. 9

Legal principles established

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  • Claims for special damages must not only be specifically pleaded but must also be specifically proved with a degree of certainty
  • A magistrates' court has no jurisdiction to interpret or enforce the Constitution; that jurisdiction vests exclusively in the High Court under Article 165(1)(3)(d)

Court orders

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  1. 1.Dismissal of the plaintiff's suit
  2. 2.Each party to bear his own costs
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court; court expressly declined jurisdiction to interpret or enforce the Constitution under Article 165(1)(3)(d) (reserved for the High 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, "Marwa v Nyamohanga & another (Civil Suit 23 of 2011) [2013] KEMC 105 (KLR)", Case Analysis (2013). Civil Suit dated 04.10.2011 (Kehancha). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/105/eng@2013-11-22

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