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ELCDismissedPetition of 2020 (undated), Environment and Land Court at Kericho

Ngetich v County Government of Bomet & 5 others (Environment and Land Constitutional Petition E002 of 2020) [2023] KEELC 128 (KLR)

Environment and Land Court
19 January 2023
6,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land and procurement petition because it repeated a decided case and skipped the proper legal channels.

What this practically means

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Executive summary

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The Petitioner, a resident of Bomet County, filed a constitutional petition alleging that public land in Bomet Town (parcels Nos 307 and 308, hosting a public stadium) was irregularly allocated to Moi University without public participation, and that the County Government of Bomet thereafter procured construction of the Bomet IAAF Stadium through an unlawful tender worth over Kshs 257,498,105 to the 6th Respondent. He sought declarations of rights violations, judicial review orders quashing the allocation decisions, refund of monies paid, and revocation of the tender. The Respondents opposed, arguing the petition lacked precision, that statutory mechanisms under the PPAD Act had not been exhausted, and that the land ownership question had been determined in Bomet Petition No 3 of 2016. The court framed two issues: res judicata and alleged violations of constitutional rights. Holding that the ownership dispute over the same parcels had been conclusively litigated in the 2016 petition between the same parties (affirmed by the Court of Appeal's injunction ruling), the court found the present petition res judicata and an abuse of process under Section 7 of the Civil Procedure Act, since adding new parties cannot evade the doctrine. In the alternative, applying Anarita Karimi Njeru and Mumo Matemu, the court found the petition lacked particulars of the alleged infringements and raised no genuine constitutional questions - the disputes fell under the Land Act, Land Registration Act, Penal Code and PPAD Act, whose statutory remedies should be pursued in appropriate forums. The petition was dismissed with costs and the interim status quo orders of October 14, 2021 were vacated.

Questions the Court framed

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

  1. 1.Whether the instant Petition is res judicata
  2. 2.Whether the Petitioner's rights under Articles 1, 2, 3, 13, 19(2), 20(5), 21, 22, 23, 26, 27, 28, 29, 40, 42 and 47 of the Constitution were violated by the Respondents and what remedies if any are available to the Petitioner

Key legal issues

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01

Whether the Petition is res judicata

Holding

Yes - the same land dispute between the same parties was conclusively determined in Bomet Petition No 3 of 2016; adding new parties does not evade the doctrine

Reasoning

Applying the five requirements in Bernard Mugo Ndegwa v James Nderitu Githae (identical issues, same parties, same title, concurrence of jurisdiction, finality), the court found the issue of ownership of parcels 307 and 308 had been litigated and determined in Bomet Petition No 3 of 2016, which the Court of Appeal also addressed in its injunction ruling. Adding the Petitioner and other Respondents could not evade Section 7 of the Civil Procedure Act.

p. 10
02

Whether the Petition raised genuine constitutional issues

Holding

No - the dispute concerned land allocation and procurement, matters governed by statute, not violations of the Petitioner's fundamental rights

Reasoning

Following Anarita Karimi Njeru and Mumo Matemu, the Petition lacked precision on the constitutional provisions infringed. Citing Okutoyi, Murage and Kenyatta v Nairobi Star, the court held that breaches of statute are redressed under the relevant statute (Penal Code, Land Act, Land Registration Act, PPAD Act), and a constitutional petition is improper where adequate statutory remedies exist.

p. 11
03

Whether the Petitioner proved violation of his rights on a balance of probabilities

Holding

No - even if the Petition were not res judicata, no evidence was adduced of any violation of the Petitioner's rights

Reasoning

The court held it was for the Petitioner to prove on a balance of probabilities that his rights were violated, identifying the specific Articles and availing evidence. The Petition alleged violations of numerous Articles in its title but provided no particulars, and no evidence showed state action injuring the Petitioner's constitutional rights.

p. 10

Legal principles established

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  • A petition res judicata of earlier proceedings cannot be revived by adding new parties or causes of action
  • Ordinary statutory disputes should not be clothed as constitutional petitions; a petitioner must plead with precision the provisions infringed and the manner of infringement

Court orders

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  1. 1.The Petition is dismissed as res judicata and an abuse of the court process, with costs
  2. 2.In any event, the Petition is dismissed for failure to raise constitutional issues, with costs
  3. 3.The interim orders (status quo) issued on October 14, 2021 are vacated

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, Articles 22, 23, 258 (enforcement of Bill of Rights) - petition alleging violation of constitutional rights; court also invoked Sections 1B and 3A of the Civil Procedure Act

Relief refused

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Declaration of violation of constitutional rights against the 1st-5th Respondents

Petition is res judicata; and the Petitioner failed to plead with precision and adduce evidence of any violation of his rights

p. 11

Judicial review orders to quash decisions leading to sale/transfer of parcels 307 and 308

Relief must be sought in the appropriate statutory forum, not by constitutional petition

p. 12

Revocation of Bomet Tender No CGB/ADM/001/2017/18 and refund of monies paid to the 6th Respondent

Procurement disputes are for statutory mechanisms (Public Procurement and Asset Disposal Act) and the Petitioner did not prove impropriety

p. 9

Costs

The Petition is dismissed with costs (to the Respondents)

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.

The upshot of the foregoing is that the Petition herein having been conclusively in Bomet Petition No 3 of 2016 County Government of Bomet vs Moi University & 2 Others the Petitioner's Petition herein is res judicata to that efiect and is therefore an abuse of the court process.
p. 10res judicata / abuse of process
I find that this Petition is res judicata the said proceedings and the addition of the Petitioner, the 2nd and 6th Respondents herein to the Petition estoppes them from litigating under the provisions on Section 7 of the Civil Procedure Act.
p. 10res judicata - adding parties cannot evade the doctrine
From the facts before me, and the fact that that courts must at all times guard against improper transmission of normal disputes or ordinary issues of litigation being clothed as Constitutional Petitions, I find that this Petition does not raise constitutional issues. The Petitioner ought to have approached the appropriate court by way of an ordinary suit. For the above captioned reasons, this Petition is still stands dismissed with costs.
p. 12final orders - dismissal
The interim orders issued on October 14, 2021 are herein vacated.
p. 12final orders - vacation of interim orders

Issues in the judgment

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minor

Suit parcels inconsistently identified - the Court of Appeal injunction quoted refers to parcels Nos 418 and 419 while the Petition and judgment refer to parcels Nos 307 and 308

minor

Case name of the precision authority spelled inconsistently within the judgment ('Anarita Katimi Njeru' vs 'Anarita Karimi Njeru')

minor

Judgment contains grammatical/typographical defects in its disposition

minor

Tender number cited inconsistently - Petition cites Bomet Tender No CGB/ADM/001/2017/18 while the 6th Respondent's contract is described as Tender No CGB/YS/001/2017/2018

minor

Court of Appeal extract reproduces 'prayer 3' as referring to the 1st Defendant/Respondent being restrained, though the Petition names Moi University as 3rd Respondent; the res judicata parties analysis relies on this material

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, "Ngetich v County Government of Bomet & 5 others (Environment and Land Constitutional Petition E002 of 2020) [2023] KEELC 128 (KLR)", Case Analysis (2023). Petition of 2020 (undated), Environment and Land Court at Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/128/eng@2023-01-19

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