Petitioner v 1st Respondent & others (Preliminary Objection ruling re Lembus/Torongo/301)
The bottom line
#Kenya's Environment and Land Court allowed a community group's public-land petition to proceed to full hearing, rejecting every attempt to throw it out early.
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 court has jurisdiction to hear and determine this matter.
- 2.Whether the Petitioner has locus standi to institute this suit.
- 3.Whether the Petition meets the threshold of a Constitutional Petition.
- 4.Whether a claim of abuse of office can be sustained against a surviving spouse or legal representative.
- 5.Whether the suit fails the doctrine of exhaustion of remedies.
Key legal issues
#Jurisdiction of the ELC and effect of a pending succession cause
The court has jurisdiction under Article 162(2)(b) and section 13 of the ELC Act; the pending succession cause does not oust it because ownership of the suit property must first be settled
Article 162(2)(b) and section 13(2) of the Environment and Land Court Act confer power to hear disputes relating to title, land administration and public land. A petition is a competent mode of commencing such disputes. Although a succession matter over the suit property is pending, ownership disputes must be resolved before the succession court can determine what assets form the estate.
Locus standi of the Petitioner
The Petitioner, acting in public interest through a community-based organization, has standing under articles 22 and 258 and the Mumo Matemu decision
The 2010 Constitution fundamentally transformed standing; any person may sue in the public interest or in the interest of a group or class. The Petitioner sued as leader of Baringo Human Rights Defenders CBO championing community rights, alleging the suit property is public land. Following Mumo Matemu, standing requirements of demonstrating personal interest are obsolete.
Sufficiency of the constitutional petition against the Anarita Karimi Njeru test
The petition meets the threshold; striking out is unwarranted at this stage
The Anarita Karimi Njeru test requires the petitioner to set out with precision the complaint, the provisions said to be infringed and the manner of infringement. The amended petition alleged fraudulent registration of public property contrary to section 75 of the former Constitution, invoking articles 40, 47 and 64. What remains is proof of those allegations at the hearing.
Sustainability of abuse of office/fraud claims against the widow of the deceased
Fraud and abuse of office allegations against the deceased cannot be sustained against his widow
Allegations of fraud must be specifically pleaded and strictly proved, and in Peter Owade Ogwang v Jared Obiero Ouya the Court of Appeal held that where the case against a deceased defendant abates, the fraud allegations cannot stand against others without a nexus. The claim here is personal to the deceased and cannot be attributed to or proved against his widow.
Exhaustion of remedies via the Co-operative Tribunal
The exhaustion doctrine does not apply; the dispute is not one contemplated by section 76 of the Co-operative Societies Act
Section 76 of the Co-operative Societies Act refers disputes concerning the business of a co-operative society among members or between members and the society to the Tribunal. This dispute challenges title to alleged public land on grounds of fraud, which exceeds the Tribunal's jurisdiction and lies squarely with the ELC.
Whether the preliminary objection satisfies the Mukisa Biscuits test
The objection fails the pure-point-of-law test; the fraud ground requires ascertainment of facts and cannot be resolved at the interlocutory stage
Per Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct, without ascertainment of facts or exercise of discretion. The only surviving ground concerns fraud allegations against a deceased person, which requires hearing evidence from the parties.
Legal principles established
#- A land/environment dispute may be commenced by constitutional petition and the Environment and Land Court has jurisdiction over it
- Articles 22 and 258 of the Constitution broadly confer standing, including on persons acting in the public interest
- A petition that identifies the infringed constitutional provision and the manner of infringement meets the Anarita Karimi Njeru threshold
- Allegations of fraud/abuse of office against a deceased person cannot be attributed to or proved against his widow or personal representative
- A challenge to title on grounds of fraud involving alleged public land is beyond the Co-operative Tribunal and falls within the ELC's jurisdiction, so the exhaustion doctrine does not apply
Court orders
#- 1.The Preliminary Objection is dismissed.
- 2.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act, 2011
Relief refused
#Upholding the 1st Respondent's notice of preliminary objection dated July 27, 2022
The objection did not raise a pure point of law capable of disposal at the interlocutory stage, and the petition survives save that the fraud claim against the deceased cannot be sustained against his widow
Costs
No order as to costs - the preliminary objection was dismissed with no order 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.
Consequently, the Preliminary Objection cannot be upheld and the same is hereby dismissed with no order as to costs.
In view of the provisions of articles 22 and 258 of the Constitution and the decision in the Mumo Matemu case (supra) with which I concur, it is my finding that he has the locus standi to institute this suit.
What remains is for the petitioner to prove those allegations. I would therefore hesitate to strike out the petition on the ground that it does not meet the test of a constitutional petition.
In the instant case, the allegation of abuse of ofice and fraud have been made against the deceased 1st Respondent and the same cannot be attributed to, or proved against his widow.
The scope of the dispute is beyond the jurisdiction of the Tribunal as it involves the challenge of title on grounds of fraud and it therefore falls within the jurisdiction of this court. In the premises the doctrine of exhaustion does not apply.
It is now settled that that a dispute relating to land and or the environment can be commenced by way of a constitutional petition and it is only the Environment and Land Court that has jurisdiction to entertain such matters.
Issues in the judgment
#The judgment refers to counsel for the 1st Respondent agreeing on the succession point, but the succession/sub-judice objection was raised by the 1st Respondent herself - possible internal confusion of counsel's role
Paragraph 39 refers to 'the petitioner' raising the issues in the Notice of Preliminary Objection, when it was the 1st Respondent who filed it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petitioner v 1st Respondent & others (Preliminary Objection ruling re Lembus/Torongo/301)", Case Analysis (2024). Undated Petition filed August 2, 2021, amended May 24, 2022 (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/399/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.