[2017] KEHC 1932 (KLR)
The court found that the petition was fatally defective for two main reasons: first, the supporting affidavit was bare and did not provide any evidence to substantiate the petition's claims, failing to meet the evidentiary threshold required in constitutional petitions. Second, the petition did not specify the...
Source-derived case information.
- Citation
- [2017] KEHC 1932 (KLR)
- Parties
- Applicant: Dimention Outdoor Limited; Respondent: County Government of Isiolo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 3 of 2017
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- A Mabeya
- Legal Topics
- Right to Fair Administrative Action, Pleading Requirements, Constitutional Petitions, Business Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dimention Outdoor Limited
Applicant
County Government of Isiolo
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the respondent's threatened removal of the petitioner's billboards violated the petitioner's constitutional rights.
- 2 Whether the petition was fatally defective for failing to specify the constitutional provisions allegedly infringed.
- 3 Whether the supporting affidavit met the evidentiary requirements for constitutional petitions.
Ratio Decidendi
The court found that the petition was fatally defective for two main reasons: first, the supporting affidavit was bare and did not provide any evidence to substantiate the petition's claims, failing to meet the evidentiary threshold required in constitutional petitions. Second, the petition did not specify the constitutional provisions alleged to have been violated or the manner of their infringement, contrary to the requirements established in Anarita Karimi Njeru v Republic. The absence of these fundamental elements meant the petition did not disclose a cause of action under the Constitution. Even if submissions had been filed, the petition could not succeed on its merits due to these...
Court Disposition
petition dismissed
Orders
- The petition is dismissed for want of prosecution and for being fatally defective.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CONSTITUTIONAL PETITION NO. 3 OF 2017
DIMENTION OUTDOOR LIMITED.............................PETITIONER
Versus
COUNTY GOVERNMENT OF ISIOLO.....................RESPONDENT
J U D G M E N T
1. In the petition dated 6th February, 2017, it is alleged that on or about 25th January, 2017 the petitioner applied to the Respondent for erection of billboard. The Respondent the application and the same was duly paid for. It is further alleged that in breach of the petitioner’s right to enjoy freedom of doing business, the Respondent threatened to remove the billboards along Nanyuki – Isiolo road without giving any reasons.
2. The petitioner the claimed that it had served the Respondent with its claim but the Respondent had not responded thereto and had intentions of destroying the same. The petitioner therefore prayed for a declaration that the Respondent’s intention of removing the said billboards was illegal and that it should pay the costs of the petition.
3. The petition was supported by the affidavit of Moses Njora sworn on 6th February, 2017. That supporting affidavit was of three paragraphs in which the deponent stated that; he was competent to swear the same, that he verified the contents of the petition and that what he had stated was true to the best of his knowledge belief and understanding.
4. When the petition came up for directions on 18th May, 2017, the advocate appearing for the petitioner sought that the petition be determined by way of affidavits and written submissions. The court acceded to the request and directed that; the petition be determined by way of affidavits and written submissions, that the petitioner do file and serve its written submissions within 30days and that the respondent do file and serve its written submissions if any within 30 days of service. The matter was then fixed for mention on 4th October, 2017 to give a date for judgment.
5. When the matter came up for mention on 4th October, 2017 as aforesaid, Mr. Mwiti holding brief for Mr. Kirima for the petitioner informed the court that submissions had not been filed. There was no appearance on the part of the respondent. The court then reserved the matter for judgment as it was bound to.
6. I have considered the entire record. The petition was properly served upon the respondent on 2nd February, 2017 but chose not to enter appearance or defend it. These proceedings therefore are undefended. However, the court had directed that the petition be determined by way of affidavits and written submissions. There were no written submissions that were filed by the petitioner. In this regard, the petitioner failed to prosecute its petition and the same is for dismissal without much ado.
7. Even if submissions were filed, could the petition succeed? I don’t think so. Firstly, there was no proper affidavit in support of the petition. The affidavit that is sworn in support of a Constitutional Petition is expected to contain the evidence that supports the averments in the petition. In the present case as indicted earlier on, the affidavit in support of the petition is bare. It never contained any evidence at all. It was akin to that which is usually sworn in support of a plaint. With the greatest respect, that is not the case with Constitutional Petitions.
8. As if the foregoing is not enough, the petition itself is fatally defective. The petition did not specify the provisions of the Constitution that had been or was threatened to be violated. In the case of Anarita Karimi vs. Republic [1979] eKLR,the court held:-
“If a person is seeking redress from the High Court on a matter which involves reference to the Constitution, it is important …. that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”.
9. To this court’s mind, that position still obtains and is still good law. A party who seeks a remedy under the constitution should as of necessity clearly set out the provisions of the constitution allegedly being infringed, the manner they are being infringed and clearly what his complaint is. That is a basic requirement of pleading. In so doing, not only will the respondent know the case it is facing, but the court will be able to discern the dispute easily and deal with the same for the ends of justice.
10. In the present case, although the petition set out its complaint, that it had obtained permission from the respondent to erect billboards and that the respondent had threatened to pull them down, the petitioner did not specify the provisions of the Constitution that had been or were about to be breached and the manner of the breach.
11. In the circumstances, I find the petition to be without merit and the same is hereby dismissed. Since the respondent did not appear, I will not make any orders as to costs.
DATED and DELIVEREDat Meru this 9th day of November, 2017.
A. MABEYA
JUDGE