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ELCOtherPetition dated July 2, 2019 (number not stated in text)· [2022] KEELC 3313 (KLR)

Koyiet v Kereiya & 3 others (Environment & Land Petition 20 of 2019) [2022] KEELC 3313 (KLR)

Environment and Land Court
26 May 2022
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute petition survived, but only just: listing constitutional rights without showing exactly how they were violated doesn't meet the required standard.

What this practically means

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Executive summary

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This is a first-instance ruling by the Environment and Land Court on a notice of preliminary objection in a constitutional petition concerning competing claims over suit properties. The Grounds of Opposition dated October 8, 2021 filed by the 2nd, 3rd and 4th respondents were, by consent of the parties recorded on January 26, 2022, treated as a notice of preliminary objection and disposed of by written submissions. The respondents argued that the petition failed the precision threshold under article 165(3)(d) of the Constitution as laid down in Anarita Karimi Njeru v Republic and restated in Mumo Matemu v Trusted Society of Human Rights Alliance, and that the competing land claims should have been brought by way of plaint under section 19 of the Civil Procedure Act and Order 3 of the Civil Procedure Rules. The petitioner maintained that the constitutional provisions violated and the manner of infringement were specifically pleaded and that a litigant may pursue the most efficacious remedy. The court, Mbogo J, held that although the petitioner invoked Articles 40 and 50(1), she raised her grievances generally without demonstrating how they were infringed, failing the 'who', 'what' and 'why' test, but noted she may amend the petition or institute a civil suit. The preliminary objection partially succeeded in terms of prayer 1, with costs in the cause.

Key legal issues

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01

Whether the petition satisfies the precision threshold in article 165(3)(d)

Holding

The petition fails the threshold because the petitioner raised the violations generally without precision and did not demonstrate the manner of infringement

Reasoning

The court applied the Anarita Karimi Njeru test as restated in Mumo Matemu: a petitioner must set out the constitutional provisions violated and precisely how they were infringed. Although the petitioner cited Articles 40 and 50(1), she stated the wrongs generally, without answering the 'who', 'what' and 'why' questions, so the petition did not meet the pleading standard.

p. 4
02

Whether the petitioner should have filed an ordinary civil suit instead of a petition

Holding

This limb of the objection did not prevail; the objection succeeded only in terms of prayer 1 (the pleading-threshold ground), and the petitioner remains free to amend the petition or file a civil suit

Reasoning

Relying on Joseph Kibowen Chemior v William C Kisera, the court noted section 19 of the Civil Procedure Act does not give the Civil Procedure Rules a monopoly on how suits are instituted, and article 22(1) confers a right to petition. It declined to hold that the competing land claims could only be litigated by plaint; the petitioner may amend or institute civil proceedings.

p. 4

Legal principles established

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  • A constitutional petition must set out with reasonable precision the constitutional provisions said to be infringed and the manner of infringement; merely listing provisions is insufficient
  • Every person has the right to institute court proceedings claiming a denial, violation or infringement of a right in the Bill of Rights
  • Preliminary objections must be purely on points of law

Court orders

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  1. 1.The Notice of Preliminary Objection dated 8th October 2021 partially succeeds in terms of prayer 1
  2. 2.Costs to be in the cause
Jurisdiction invoked
Articles 22(1), 40, 50(1) and 165(3)(d) of the Constitution of Kenya

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, "Koyiet v Kereiya & 3 others (Environment & Land Petition 20 of 2019) [2022] KEELC 3313 (KLR)", Case Analysis (2022). Petition dated July 2, 2019 (number not stated in text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3313/eng@2022-05-26

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