Kongo v China Henan International Corporation Group Company Limited
The bottom line
#The Environment and Land Court in Homa Bay struck out a constitutional rights petition because it was filed in the wrong form, leaving the door open to refiling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition, said to have been wrongly brought as an Environment and Planning civil case, should be struck out or dismissed
Key legal issues
#Whether a petition wrongly filed as an Environment and Planning civil case should be struck out
The petition was wrongly filed and was struck out, with no orders as to costs
The court noted the petition dated 1st October 2023 and lodged on 3rd August 2023 was wrongly brought as an Environment and Planning civil case. Bearing in mind the distinction between striking out and dismissal, the court opted to strike out the petition rather than dismiss it, and made no order as to costs.
Legal principles established
#- A distinction exists between a matter that is struck out and one that is dismissed
Court orders
#- 1.The petition, which was wrongly filed, is struck out
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 20(1), 22(1), 23(3), 42, 43(1), 69(2) and 70(c) of the Constitution of Kenya, 2010 (as invoked in the petition)
Relief refused
#Enforcement of alleged rights under Articles 26, 28, 40, 42, 43(1), 69(2) and 70(c) of the Constitution
The petition was wrongly brought as an Environment and Planning civil case and was struck out
Costs
No orders as to costs
Quotable passages
#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 present Petition dated 1st October 2023 and lodged on 3rd August 2023 by the Petitioner, Samwel Yogo Kongo through Quinter Adoyo and Company Advocates, was wrongly brought as Environment and Planning civil case as filed herein.
I bear on mind the destruction between a matter struck out and dismissed one; see Ngoni Matengo Cooperative Marketing Union Limited versus Ali Mohammed Osman (1959) EA 577.
this petition which is wrongly filed is hereby struck out with no orders as to costs
Issues in the judgment
#Petition date precedes lodgement date
Typo in key holding - 'destruction' instead of 'distinction'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kongo v China Henan International Corporation Group Company Limited", Case Analysis (2023). Environment & Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21100/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.