[2012] KEHC 4352 (KLR)

[2012] KEHC 4352 (KLR)

The court found that while the Constitution of Kenya recognizes traditional dispute resolution mechanisms, such mechanisms must not be used in a manner that contravenes the Bill of Rights, is repugnant to justice and morality, or is inconsistent with the Constitution or written law. The Njuri Ncheke Council of Elders is not a court or tribunal established by law and cannot exercise judicial authority over land disputes in adjudication areas, especially without the consent of the parties. The applicant, not being a member of the council and objecting to its jurisdiction and practices, cannot be compelled to attend or undergo customary oaths, as this would violate his constitutional rights...

Citation
[2012] KEHC 4352 (KLR)
Parties
Plaintiff: Erastus Gitonga Mutuma; Defendant: Mutia Kanuno; Defendant: Michael Gichunge; Defendant: Zakary Mutua; Defendant: Kabwi M’Itumbiri (also referred to as John M’Itumbiri M’Maria)
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
26 March 2012
Case Number
Civil Suit 132 of 2011
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Outcome
application granted
Judges
AN Makau
Legal Topics
Interlocutory Injunctions, Customary Dispute Resolution, Land Adjudication, Freedom of Religion, Bill of Rights, Jurisdiction
Source Language
English
Civil Procedure Land and Property Alternative Dispute Resolution Interlocutory Injunctions Customary Dispute Resolution Land Adjudication Freedom of Religion Bill of Rights +1 more

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Parties

Erastus Gitonga Mutuma

Plaintiff

Mutia Kanuno

Defendant

Michael Gichunge

Defendant

Zakary Mutua

Defendant

Kabwi M’Itumbiri (also referred to as John M’Itumbiri M’Maria)

Defendant

Procedural Posture

Civil Suit / Ruling on Interlocutory Injunction Application

Legal Issues

  1. 1 Whether the Njuri Ncheke Council of Elders can summon and subject the applicant to customary oaths and hearings over land in an adjudication section against his will.
  2. 2 Whether the applicant is entitled to a temporary injunction restraining the defendants from subjecting him to such proceedings and oaths.
  3. 3 Whether the actions of the respondents contravene the applicant's constitutional rights, including freedom of religion and fair hearing.

Ratio Decidendi

The court found that while the Constitution of Kenya recognizes traditional dispute resolution mechanisms, such mechanisms must not be used in a manner that contravenes the Bill of Rights, is repugnant to justice and morality, or is inconsistent with the Constitution or written law. The Njuri Ncheke Council of Elders is not a court or tribunal established by law and cannot exercise judicial authority over land disputes in adjudication areas, especially without the consent of the parties. The applicant, not being a member of the council and objecting to its jurisdiction and practices, cannot be compelled to attend or undergo customary oaths, as this would violate his constitutional rights...

Court Disposition

application granted

Orders

  • A temporary injunction is issued restraining the defendants, their successors, members, adherents, faithful, sympathizers, followers, and anyone acting for or through them from summoning, compelling, or subjecting the plaintiff/applicant to any hearing of disputes over land No.214 Amwathi/Maua Adjudication Section...
  • Costs of the application awarded to the applicant.