Kitheka (Suing as administrator of the Estate of Kitheka Mweta) v Mwova & 8 others (Constitutional Petition E001 of 2021) [2023] KEELC 351 (KLR)

The court adopted the classic statement in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, which defines a preliminary objection as a pure point of law, analogous to a demurrer, that cannot be raised if any fact has to be ascertained or where the exercise of judicial discretion is sought. The court also noted the Black Law Dictionary definition that an objection, if upheld, would render further proceedings impossible or unnecessary. Neither ground raised by the 1st Respondent met this test.

Relying on Article 22(1) and (2) of the Constitution, the court held that every person has the right to institute court proceedings claiming a denial, violation or infringement of a right or fundamental freedom. A litigant therefore has freedom to choose whether to litigate by petition or ordinary suit. The court also invoked Anarita Karimi Njeru, noting the Petitioner had specifically stated the rights infringed (Articles 50(1) and 47(1)) and how, and that he was within his rights to file the petition on behalf of his father's estate.

The court noted that the 1st Respondent did not cite any provision of law limiting the time for filing a constitutional petition. Relying on precedents including Dominic Arony Amolo and Wachira Waheire, as summarised by Mumbi Ngugi J, courts have consistently held there is no limitation period for petitions alleging violation of fundamental rights, though courts may consider inordinate delay and whether a respondent would be vexed by a stale claim. The court was satisfied no prejudice was occasioned.