Ndiogo Ole Taruru v Mary Benson Kuyo & another
The bottom line
#Kenya's Court of Appeal reinstated a landowner's suit struck out merely because it was filed as a civil suit instead of a constitutional petition.
What this practically means
#Executive summary
#Key legal issues
#Whether a civil suit is incompetent merely because it raises a violation of the right to fair hearing
No. The jurisdiction of the superior court was not ousted by the fair-hearing complaint; striking out the suit as a civil suit rather than a constitutional petition was premature and offended substantive justice.
The Court held that Article 159(2)(d) requires justice without undue regard to technicalities, and Order 51 rule 10 provides no application shall be defeated for want of form. Even where a constitutional issue arises, the court focuses on merits. Natural justice required the suit be heard on its merits.
Whether a potential constitutional issue converts a dispute into a constitutional petition
No. A court will not determine a constitutional question where a remedy exists under other legislative provisions; not every dispute with an underlying constitutional breach becomes constitutional litigation.
Relying on Gabriel Mutava and Daniel N. Mugendi, the Court held that where sufficient alternative avenues exist, parties should not trivialize constitutional jurisdiction. Courts decline constitutional determination where a remedy is available on another basis.
Whether striking out the suit while only a stay application was before the court was proper
It was premature. What was before the Judge was an application for stay of execution pending determination of the suit; the pleadings were never argued or determined.
The Court noted the pleadings never saw the light of day and the application sought only a stay. Citing Godfrey Kirimi, citing wrong provisions in a stay application is not fatal. Substantive justice required the suit be considered on its merits.
Legal principles established
#- A suit raising a constitutional complaint need not be brought as a constitutional petition where an ordinary civil remedy exists; striking out a civil suit solely because a fair-hearing complaint was raised is premature.
- Citing wrong provisions of the law in an application for stay of execution is not fatal to the application.
- The converse of the Lemaiyan Mokoosio principle also holds: framing an ordinary suit as a constitutional petition, or vice versa, does not raise a jurisdictional bar.
Court orders
#- 1.The decision of the learned Judge dismissing the application is set aside
- 2.The decision of the learned Judge striking out the suit in the superior court is set aside
- 3.The appellant's application is reinstated
- 4.The appellant's suit in the superior court is reinstated
- 5.The application and suit shall be heard and determined by any other Judge in the Environment and Land Court other than Waithaka J
- 6.The costs shall abide the outcome of the suit
- On appeal from
- Environment and Land Court at Nakuru
- ELC Nak Civil Suit No. 5 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiogo Ole Taruru v Mary Benson Kuyo & another", Case Analysis (2024). Civil Appeal 9 (CA 86 of 2016) of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1844/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.