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ELCDismissedPetition dated 6th December 2024 (Vihiga ELC Constitutional Petition)

Mukhobi v Mukhobi & another (Environment and Land Petition E014 of 2024) [2025] KEELC 5276 (KLR)

Environment and Land Court
10 July 2025
EAE. Asati
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Vihiga dismissed a family land dispute petition because it lacked precise constitutional pleadings and tried to bypass earlier court decisions.

What this practically means

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Executive summary

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The petitioner, suing his half-brothers by constitutional petition dated 6th December 2024 before the Environment and Land Court at Vihiga, sought cancellation of the certificate of title over West Bunyore/Ebusakami/1133, rectification of the registers of parcels 1133 and 1135 to substitute his name as absolute proprietor, special and general damages, and costs. He alleged the Respondents fraudulently caused their father to transfer the suit lands to them under the pretext of transferring a different parcel. The case was disposed of by affidavit evidence and written submissions. The court framed four issues: whether the petition met the constitutional threshold, whether it had merit, whether the petitioner was entitled to the relief sought, and costs. Applying Anarita Karimi Njeru and Mumo Matemu, the court found the petition pleaded no particulars of violation of the right to a fair hearing under Article 50 and did not meet the constitutional threshold. The court held the petitioner's real grievance was dissatisfaction with prior judgments in several suits decided in favour of the Respondents, including Vihiga CMCC No. 63 of 2000 and Vihiga PMCC No. 06 of 2010, which resulted in an injunction and an eviction order. Having withdrawn his appeal against the eviction judgment, the petitioner was improperly seeking appellate and judicial review remedies through a constitutional petition, contrary to the doctrines of exhaustion and constitutional avoidance. On the merits, the prior decisions stood unvaried and the suit lands belonged to the Respondents. The petition was dismissed with each party bearing their own costs, the court considering that the parties are senior citizens and siblings who should foster unity.

Questions the Court framed

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

  1. 1.Whether or not the petition meets the threshold for constitutional petitions
  2. 2.Whether or not the petition has merit
  3. 3.Whether or not the petitioner is entitled to the relief sought
  4. 4.Cost of the petition

Key legal issues

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01

Whether the petition met the threshold for a constitutional petition

Holding

It did not; no violation of the right to fair hearing was pleaded or particularized

Reasoning

The court examined the petition and supporting affidavit and found no allegation or particulars of breach of the right to a fair hearing under Article 50. The petitioner's real complaint was dissatisfaction with the outcomes of prior cases, for which the appellate process is the proper avenue, not a constitutional petition. Relying on Anarita Karimi Njeru and Mumo Matemu, the petition failed the pleading precision threshold.

p. 4
02

Whether the petitioner could pursue appellate and judicial review remedies through a constitutional petition

Holding

No; the doctrine of exhaustion and constitutional avoidance barred this route

Reasoning

The petitioner, having withdrawn Vihiga ELC Appeal No. E11 of 2024 against the eviction judgment in Vihiga PMCC No. 06 of 2010, sought to re-litigate via a petition. The court held the petition impermissibly sought to exercise appellate jurisdiction and, through the certiorari prayer, judicial review jurisdiction, contrary to the exhaustion doctrine and constitutional avoidance as espoused in Communications Commission of Kenya v Royal Media Services.

p. 5
03

Whether the petitioner was entitled to the relief sought on the merits

Holding

No; the disputes over the suit lands had already been finally determined in favour of the Respondents

Reasoning

The court noted that prior decisions, including Vihiga CMCC No. 63 of 2000 and Vihiga 06/2010, were decided in favour of the Respondents, with an injunction and an eviction order issued. Those decisions had not been varied, so the suit lands remained the property of the Respondents and there was no basis to grant rectification or damages.

p. 6

Legal principles established

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  • Constitutional petitions must set out with reasonable precision the complaint, the constitutional provisions allegedly infringed and the manner of infringement (Anarita Karimi Njeru threshold)
  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • Constitutional jurisdiction cannot be used as a general substitute for normal procedures, and dissipation of grievance over case outcomes must follow the appellate process

Court orders

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  1. 1.The petition is hereby dismissed
  2. 2.Each party to bear own costs of the petition

The bench

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

EA
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 50 and 162 of the Constitution of Kenya

Relief refused

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Cancellation of the Land Certificate held by the 1st Respondent over L.R West Bunyore/Ebusakami/1133 and rectification of the registers of parcels 1133 and 1135

The petition failed to meet the threshold for constitutional petitions, was an attempt to cloak appellate and judicial review grievances as a constitutional petition, and the issues had already been determined by courts of competent jurisdiction

p. 5

Special and general damages

No special damages were particularized or proved, and no harm or prejudice by the petitioner was demonstrated

p. 3

Costs

Each party to bear own costs of the petition

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 petition contains no particulars of violation of the right to fair hearing. The petition does not meet the threshold of constitutional petitions.
p. 4Threshold for constitutional petitions
Such grievances cannot be camoufiaged as constitutional petitions whatsoever.
p. 4Abuse of constitutional jurisdiction
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed…
p. 5Doctrine of exhaustion
i. The petition is hereby dismissed ii. Each party to bear own costs of the petition
p. 6Final orders

Issues in the judgment

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minor

The judgment is internally inconsistent on whether a certiorari prayer was sought: the petition's prayers as set out contain no certiorari order, yet the court holds otherwise

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mukhobi v Mukhobi & another (Environment and Land Petition E014 of 2024) [2025] KEELC 5276 (KLR)", Case Analysis (2025). Petition dated 6th December 2024 (Vihiga ELC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5276/eng@2025-07-10

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