Chiriwacho v Elephant Oil Mills Limited & 3 others (Petition E009 of 2024) [2025] KEELC 6605 (KLR)
The bottom line
#The Environment and Land Court in Kwale dismissed a land rights petition because it was really an ownership dispute dressed up as a constitutional case.
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 determine the Petition
- 2.Whether the Petition meets the threshold of a Constitutional Petition
- 3.Who bears the costs of the application?
Key legal issues
#Jurisdiction of the Environment and Land Court over land disputes commenced by constitutional petition
The court found it had jurisdiction, as land disputes may properly be commenced by petition and the ELC is the competent court under Article 162(2)(b) and Section 13 of the ELC Act.
Article 162(2)(b) establishes courts with the status of the High Court for disputes relating to the environment and use and occupation of, and title to, land. Section 13(2) of the Environment and Land Court Act confers power to hear and determine such disputes. It is settled that a land or environment dispute may be commenced by constitutional petition, and only the ELC has jurisdiction to entertain such matters.
Whether the Petition met the constitutional petition threshold
The Petition failed the Anarita Karimi Njeru threshold because it did not plead the alleged violations with precision, being an ownership dispute clothed as a rights violation.
The court held that alleging a violation is not enough; it must be proved under Section 107(1) of the Evidence Act. Citing Anarita Karimi Njeru and Mumo Matemu, the court required precision in identifying the provisions infringed and the manner of infringement. The gist of the petition was ownership of the suit property, and the pleadings did not outline with precision how the Petitioner's rights were infringed.
Res judicata raised by the 1st Respondent
The court declined to make a conclusive res judicata determination, holding it unnecessary once the Petition failed the petition threshold.
The court reproduced Section 7 of the Civil Procedure Act and the Supreme Court's restatement of the res judicata elements in John Florence Maritime Services. Although the Applicant argued the ownership issue had been conclusively litigated in prior suits, the court chose not to belabour the point because the Petition had already been found to fail the constitutional pleading threshold.
Costs
Each party to bear its own costs, considering prior rigorous litigation between the parties.
Applying the Morgan Air Cargo factors (conduct of parties, subject of litigation, circumstances of institution and termination, relationship between the parties and the need to promote reconciliation under Article 159(2)(c)), the court found it proper, given the extensive prior litigation between the parties, that each party bear its own costs of the application.
Legal principles established
#- Elements that must be proven before a court may conclude that a matter is res judicata
- A petitioner seeking redress on a constitutional reference must set out the complaint, the provisions infringed and the manner of infringement with reasonable precision
- A party asserting violation of fundamental rights bears the burden of proving it
Court orders
#- 1.That the Notice of Motion application dated 19th May 2025 be and is thus allowed as prayed.
- 2.That the instant Petition dated 20th November, 2024 be and is hereby found to be without merit and is accordingly dismissed.
- 3.That each party to bear its own 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, No. 19 of 2011
Relief refused
#The Petitioner's claim that her right of hearing in ELC No. 101 of 2021 was denied/infringed and the related declaratory, cancellation, injunction and conservatory reliefs sought in the Petition
The Petition did not meet the Anarita Karimi Njeru threshold of precision in pleading constitutional violations and was found to be without merit
Costs
Each party to bear its own 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.
That the Notice of Motion application dated 19th May 2025 be and is thus allowed as prayed.
That the instant Petition dated 20th November, 2024 be and is hereby found to be without merit and is accordingly dismissed.
That each party to bear its own costs.
It is not however, enough to allege that one's fundamental freedoms or rights have been violated. The violation must be proved.
It is my considered view that the Petition as drafted does not meet the threshold of a petition as set out in the "Anarita Karimi's case"
Issues in the judgment
#The judgment records directions for written submissions given on 19th March, 2025, which predates the application date of 19th May, 2025 it purports to govern
Submissions record that only the 1st Respondent/Applicant filed submissions, yet the disposition applies the 'principles of Preponderance of Probabilities and the balance of convenience' which are unexplained in the analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chiriwacho v Elephant Oil Mills Limited & 3 others (Petition E009 of 2024) [2025] KEELC 6605 (KLR)", Case Analysis (2025). Petition dated 20th November 2024 (Notice of Motion dated 19th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6605/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.