[2023] KEHC 24901 (KLR)

Joyce Sule Muriithi t/a Erican Enterprises v Kenya Railways Corporation (Petition 10 of 2023) [2023] KEHC 24901 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24901 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition 10 of 2023

HM Nyaga, J

November 6, 2023

Between

Joyce Sule Muriithi t/a Erican Enterprises

Petitioner

and

Kenya Railways Corporation

Respondent

Ruling

1. The Petitioner presented a petition dated 3rd May, 2023.

2. The Petition is brought under Articles 19,20,21,22(1),2(b) and (4),23,24,40 & 63 of the Constitution of Kenya, Rules 4,10 and 11 of the Constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Procedure Rules,2013.

3. The petition seeks the following reliefs from the court: -a.An Order compelling the Respondent to forthwith avail and open for the petitioner’s use the 1st class restaurant on the 1st Floor of Nakuru Railway Station building, Nakuru County for a period of 6 years from the date of the court order under the lease identified as lease no. BC/WST/NRO/STN19. b.An Order compelling the Respondent to forthwith avail and open for the petitioner’s use the 3rd class restaurant on Nakuru Railway Station building for a period of 4 years from the date of the court order under lease identified as lease no. BC/WST/NRO/STN 22. c.An Order compelling the respondent to forthwith avail and open for the petitioners use the record room/delivery room, Nakuru Railway Station building, Nakuru City for a period of 6 years from the date of the court order under the lease identified as lease no. BC/WST/NRO/STN 24. d.In the alternative this Honourable Court be pleased to forthwith direct the respondent to pay to the petitioner a sum of Ksh. 9,828,566. 00 plus interest at 14% per annum from 25th October, 2017 to date of full payment respecting sums paid by the petitioner to the respondent for leased premises that were never availed by the Respondent.e.Such other or further orders as this Honourable court may deem fit and expedient to grant.f.The Respondent to meet the costs of this petition.

4. The petition is based on the grounds set out therein and supported by an affidavit sworn by the Petitioner Joyce Sule Muriithi, on the even date.

5. In a nutshell, the petitioners state that: - Vide a lease agreement dated 25th October,2017 ,the respondent leased to the petitioner, the 1st class restaurant on first floor of Nakuru Railway Station Building, Nakuru City for a period of 6 years commencing 1st December,2017,the lease identified as lease no. BC/WST/NRO/STN 19.

The petitioner proceeded to pay the Respondent various charges respecting the lease amounting to a cumulative sum of Ksh.2, 053,000. 00 between 5th November, 2017 and 29th November, 2019.

To date to the utter consternation of the petitioner, the respondent has not granted vacant possession of the said premises to the petitioner.

Vide a lease agreement dated 19th December 2017, the respondent leased to the petitioner the 3rd class restaurant on Nakuru Railway station building, Nakuru City, for a period of 6 years commencing 1st January, 2018. The lease identified as lease no. BC/WST/NRO/STN 22.

The petitioner proceeded to pay to the respondent various charges respecting the said lease amounting to a cumulative sum of Ksh.1, 648,000. 00 from 12th January, 2018 to 29th November, 2019.

The petitioner only occupied the premises for 2 years up to 19th May, 2021 when the respondent sought that the petitioner vacates for renovation works. By 10th September, 2021 renovation works had been completed but to the utter consternation of the petitioner the respondent has not allowed the petitioner back to the premises despite the remaining lease period of 4 years.

Vide a lease agreement dated 26th February, 2018, the respondent leased to the petitioner the record room/delivering room at Nakuru Railway station building, Nakuru City for a period of 6 years commencing 1st April, 2018. The lease identified as lease no. BC/WST/NRO/STN 24.

The petitioner proceeded to pay to the respondent various charges respecting the lease amounting to Ksh.6, 127,566. 00 between 16th March, 2018 and 14th February, 2020.

To date to the utter consternation of the petitioner the respondent has not granted vacant possession of the said premises to the petitioner.

Various meetings between the petitioner and officials of the respondent, to sort out the matter have borne no fruit. A demand letter to the respondent has equally elicited no response.

6. On the nature of injury caused or likely to be caused, the petitioner stated among other things that she stands to loose a cumulative sum of Kshs.9,828,466. 00 paid to the Respondent for leased premise that were never availed to her, she continues to loose business and has lost colossal sums of money in terms of business and profits she would have made from the use of the leased premises and that her fundamental rights and freedoms under the bill of rights, in particular, the right to property under Article 40 of the Constitution have been violated, and it is only appropriate that this court issues orders to protect her right to property and livelihood.

7. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion, under certificate of urgency dated 3rd May, 2023 seeking for interim orders of prayers no. 1, 2, 3 and 5 of the petition and for costs of the Application.

8. The Application is predicated on the grounds on its face and supported by an Affidavit sworn by the Petitioner. The said affidavit largely adopts the averments contained in the Petition.

9. In response to the Petition and the Application, the Respondent filed grounds of opposition dated 11th July, 2023 and the Replying Affidavit dated 31st May, 2023.

10. The grounds of opposition are premised on grounds that: -a.This Honourable Court is bereft of jurisdiction since in nature, the Application and Petition raise issue of land matters whose jurisdiction lies with the Environment and Land Court (ELC)b.The petition does not disclose any constitutional questions for the determination by this court neither does it meet the principles on pleadings in constitutional petitions enunciated in Anarita Karimi Njeru vs Republic [1979] I KLR 154 and augmented in Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLRc.The issues raised in the petition arose from contractual obligations between private parties and formed a subject matter for litigation in an ordinary civil suit as opposed to a constitutional petition.d.The application and petition are frivolous, vexatious and abuse of the scarce resources of this Honourable Court and the same ought to be struck out at once.

11. The replying affidavit was sworn by Erastus Ndambuki, a senior Real Estate Assistant of the Respondent. He deponed that the cumulative sum of Kshs.9, 828,466. 00 claimed by the Applicant is arithmetically erroneous, irrational and does not accord with logic.

12. He averred that the Respondent is not aware of having received a sum of Kshs.2, 053,000. 00 as rent for the 1st class restaurant as alleged by the Applicant and that in any event, the bundle of receipt produced by the applicant and marked as exhibit 3 is illegible and to that extent does not make any case.

13. He deposed that the applicant has not produced any empirical or documentary evidence to demonstrate that she was denied occupation by the Respondent.

14. He asserted that the applicant owes the Respondent a sum of Ksh.1, 475,744. 22 due and outstanding from the said lease and that the Applicant’s allegation that she occupied the 3rd class restaurant for a period of two (2) years commencing on 1st January, 2018 and determining on 19th May, 2021 is ridiculous as the sound arithmetical calculations would have it that the difference in time between the said dates is close to three and a half (3. 5) years.

15. It was his averment that the applicant’s contention of having paid a sum of Ksh.1, 648. 000. 00 for the above restaurant is doubtful and contended that the applicant ought to have paid rent and Value Added Tax equivalent to Ksh.2, 600,000. 00 and Ksh.416, 000. 00 respectively for forty (40) months that she was in occupation of the Respondent’s property.

16. He contended that the Applicant owes the Respondent a sum of Ksh.1, 365,580. 00 due and outstanding from the said lease.

17. He averred that the respondent is not aware of having received a sum of Ksh.6,12,566. 00 as rent for the record room/delivering room as alleged by the Applicant and that indeed the applicant owes the respondent a sum of Ksh.2,503,701. 72 due and outstanding from the said lease.

18. Without prejudice to the foregoing, he asserted the applicant could not have been issued with notices to vacate premises if she was not in actual occupation.

19. He deponed that the applicant has no proprietary rights/interest whatsoever over the suit premises but only seeks to unjustifiably defer the respondent’s proprietary rights over the said premises.

20. He prayed for the dismissal of the Application in its entirety.

21. The applicant swore a supplementary affidavit in response to the aforestated Replying Affidavit on 15th August, 2023. She annexed Respondent’s invoices and statements of Ksh. 2,053,000. 00, 1,648,000. 00 and Ksh.6, 127,566. 00 to prove that she had paid the respondents the said amount.

22. She disputed that she owes the Respondent the outstanding rent of Ksh.1, 475,744. 22, Ksh.1,365,580. 00/= and 2,503,701. 72.

23. To demonstrate that she was denied occupation, she annexed a letter dated 7th August, 2018 in which she was seeking vacant possession for BC/WST/NRO/STN/19 & BC/WST/NRO/STN/24.

24. She also annexed a summary of all payments made to the respondent in respect of the 3 leased premises.

25. The Application was canvassed through written submissions.

Petitioner’s Submissions 26. On whether this court has jurisdiction to determine this suit, the petitioner submitted that the issue herein involves a party who paid for premises with the legitimate expectation that she would be granted vacant possession thereof to conduct her business.

27. She argued that this Honorable Court is empowered under the constitution to determine the application as well as the petition. In support of this position, the petitioner relied on Article 165(3) of the Constitution.

28. She contended that every Kenyan under the constitution is granted the power to seek the aid of the court where his rights and freedoms have been violated or are in danger of violation, and that pursuing such a remedy surpasses scrutinization of technicalities, and further there is no principle in law that a party cannot pursue a constitutional petition where his rights have been infringed. In buttressing her submissions the petitioner relied on the cases of Fred Munialo Maelo vs Mathew Wamalwa Wafula & 2 others [2020] eKLR for the proposition that each case must be considered on its own peculiar circumstances and it is not a principle of law that a constitutional petition cannot be filed where there is another remedy which the petitioner could have pursued; Patrick Mbau Karanja vs Kenyatta University [2016] eKLR for the proposition that to invoke the Bill of Rights in matters where the state is not a party would certainly dilute the sanctity of the Bill of Rights.

29. Reliance was also placed on the decisions in Kenya Hotel Properties Limited vs Attorney General & 5 others [2018] eKLR &Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & others (2012) eKLR that a court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

30. The petitioner submitted that this court is empowered under Article 23(3) of the Constitution to grant the remedies sought.

31. In rebutting the Respondent’s contention that the right court to determine this matter is ELC, the petitioner submitted that ownership of land is uncontroverted and that her case is simple ,that she paid Ksh.9,828,466. 00 with an agreement that she would rent the premises only for the Respondent to take the entire amount and lock her out of the premise.

32. The petitioner argued that courts have invariably used the “predominant purpose test” in addressing the conflict between the High Court and ELC regarding matters such as this one. To bolster her submissions, the petitioner referred this court to the case of Suzanne Achieng Butler & 4 others vs Redhill Heights Investments Limited & another [2016] eKLR.

33. The Petitioner further argued that where there is no dispute as to ownership or proprietorship of land, then the High Court has the requisite jurisdiction to handle the matter. In support of this proposition, reliance was placed on the case of Moses Barto Cherop t/a Crater Center vs Postal Corporation of Kenya [2022] eKLR

34. With respect to whether the petition fits the threshold of a constitutional petition, the petitioner relied the cases Anarita Karimi Njeru vs Republic No.1 (supra), Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (supra), & Kiambu County Tenants Welfare Association vs Attorney General & another [2017] eKLR, for the proposition that a constitutional petition should set out with a degree of precision the petitioner’s complaint, the provision infringed and the manner in which they are alleged to be infringed ,and submitted that she has accurately laid down her case , particularized the law on which the petition is founded and sufficiently quoted all the relevant articles of the constitution and linked them to the facts of the petition.

35. On whether the petitioner is entitled to the prayers sought, the petitioner submitted that she has demonstrated the infringement of constitutional rights and the injury and effect she has suffered and more that she is likely to suffer. She contended that she has been robbed not only of the colossal amount of money that she has paid to the respondent but also denied the leased premises.

Respondent’s Submissions 36. In regards to whether this Honourable Court has jurisdiction to handle the matter, the respondent submitted that this court is bereft of jurisdiction to hear and determine both the application and the petition as the subject matter arose from lease of property and as such the claim should have been addressed to Environment and Land Court.

37. The respondent argued that a lease is a contract and is one if the instruments granting enforceable interest in land as enshrined under Section 13(2) (d) of the Environment and Land Court. In buttressing its submissions, the respondent relied on the case of RW vs JMN [2022] eKLR where the court stated that the jurisdiction of the ELC Court is limited by Article 162(2) and (3) of the Constitution of Kenya and Section 13(2) of the ELC Act No. 19 of 2011, and under Article 162(2) (b) the ELC Court has the mandate to hear and determine disputes relating to use and occupation and title to land.

38. The respondent citing the case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR submitted that this court ought to down its tools for want of jurisdiction.

39. With respect to whether the petition meets the threshold of constitutional petition, the respondent submitted that the Applicant has not in any way set out with a degree of precision her complaint, the constitutional provisions infringed and the manner of infringement and as such the petition does not meet the threshold of a constitutional petition as postulated in the cases of Anarita Karimi Njeru vs Republic No.1 (1979) I KLR, Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, & Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR.

40. With regard to whether the petitioner/applicant should be granted the prayers sought, the respondent submitted that the applicant has not established any case to warrant grant of the prayers sought in both the Application and petition.

41. On who should bear costs of this application and the petition, the respondent relied on Section 27(1) of the Civil Procedure Act and the case of Peter Muriuki Ngure vs Equity Bank (K) Ltd [2018] eKLR for the proposition that costs follow the event.

42. In light of the above, the respondent submitted that the Petitioner/Applicant should bear the costs herein.

Analysis & Determination 43. I have considered the pleadings, Responses and submissions made by both the Applicant and the Respondent. The issues that crystallize for determination are:-a.Whether this Court has jurisdiction to hear and determine the Applicant’s Notice of Motion and petition.b.Whether the petition meets the threshold of a petition.c.Whether the Petition raises any constitutional questions.d.Who should bear the costs of the Application and the Petition?

44. On the issued of jurisdiction, the respondent submitted that the Court with jurisdiction to hear and determine this application is the ELC since the subject matter is premised on a lease of property. The respondent posited that lease is a contract and is one of the instruments granting enforceable interest as enshrined under Section 13(2) (d) of the Environment and Land Court Act.

45. On the other hand, the applicant submitted that the issue of land is uncontroverted and her case is simply based on a cumulative sum of Kshs.9,828,466. 00 that she paid to the Respondent on agreement that she would rent its premises but she was kicked out.

46. It is trite law that a Court without jurisdiction cannot proceed further. Thus, when an issue of jurisdiction has been raised, the Court must first address itself to the jurisdictional challenge raised before proceeding on other issues.

47. In Sir Ali Salim vs Shariff Mohammed Sharray 1938 KLR the court noted thus: -“If a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however certain and technically correct, are mere nullities and not only voidable, they are void and have no effect either as estoppel or otherwise and may not only be set aside at any time by the court in which they are rendered but be declared void by every court in which they may be presented. It is well established law that jurisdiction cannot be conferred on a court by consent of parties and any waiver or their part cannot make up for the lack of jurisdiction.”

48. In Owners of Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd [1989] eKLR, the Court affirmed and rightly so, that ‘Jurisdiction is everything. Without it, a Court has no power to make one more step.’

49. The jurisdiction of the ELC Court is limited by Article 162(2) and (3) of the Constitution of Kenya and Section 13(2) of the ELC Act No. 19 of 2011. Article 162(2)(b) which states that ELC Court has the mandate to hear and determine disputes relating to use and occupation and title to land.

50. In particular the provisions of Article 162(2) of the Constitution of Kenya 2012 provide as follows: -“(1)The superior Courts are the Supreme Court, the Court of Appeal, the High Court and the Courts mentioned in clause (2).(2)Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to—(a)………………………………………...; and(b)the environment and the use and occupation of, and title to, land.Parliament shall determine the jurisdiction and functions of the Courts contemplated in clause (2)”.13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.”

51. It follows therefore that the High Court's enforcement jurisdiction does not extend to matters relating to disputes falling Under Section 13(2) of the Environment and Land Court Act.

52. The jurisdiction of the High Court is set out under Article 163(3) which states that the High Court shall among others, have; a) Unlimited original jurisdiction in criminal and civil matters.

53. In this case the ownership of land is not uncontroverted. The existence of a lease between the Respondent and the Applicant is similarly uncontroverted. The Applicant’s claim is based on breach of a lease contract. This court in determining whether or not to issue the reliefs sought has to establish which party was in breach and the consequences thereof.

54. I find the cases referred to me by the Applicant are relevant and applicable in the instant case.

55. The court in Suzanne Achieng Butler & 4 others vs Redhill Heights Investments Limited & another(supra) while addressing a similar issue with the one herein stated as follows:-“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.24. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.25. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue.26. In my view, the following factors are significant in determining the nature of the contract:a.The language of the contract;b.The nature of the business of the vendor;c.If the contract is mixed, the intrinsic worth of the two parts – land acquisition and other services or provision of materials;d.The gravamen of the dispute – whether rooted in contests about ownership, deficiency in title, occupation or use of the land or whether the genesis of the dispute is something else like the quality of services offered, construction, works and so forth; ande.The remedies sought by the Plaintiff.”

56. The court further stated as follows:-“It is, finally, my finding that the Land Acquisition Price having been paid (as it is undisputed from the pleadings), and the title to the properties having been registered in the name of the Plaintiffs, there is no dispute as to ownership of land – the only contest being whether there has been a breach of the Construction Contract between the parties, and if so which party is in breach and what the consequences for the breach are. Consequently, it is my finding and holding that the dispute between the Plaintiffs and the Defendants that is presented to court is a dispute that is not primarily about land. I therefore hold that this Court has jurisdiction to hear the suit.”

57. Moses Barto Cherop t/a Crater Center vs Postal Corporation of Kenya the court held as follows:-“From the pleadings, there is no dispute as to proprietorship rights of parties in respect to the land herein. The issue that the court will be considering is whether the defendant misrepresented to the plaintiff that the premises was available for lease by the plaintiff to set up and run restaurant business; and whether the plaintiff suffered any loss as a result of misrepresentation if any.28. From the foregoing, it is evident that the claim arises from breach of contract. This court is therefore seized with jurisdiction to hear and determine this matter. I therefore find the preliminary objection lacks merit and proceed to dismiss with costs to the plaintiff.”

58. I am persuaded by the above authorities, and considering the ownership of land is not in dispute and neither does existence of a lease denied, I find this court is seized with requisite jurisdiction to hear and determine this matter.

59. I will now deal with the second issue.

60. The court in Anarita Karimi Njeru vs The Republic (supra) held that a Constitutional petition should set out with a degree of precision the petitioner’s co-plaint, the provisions infringed and the manner in which they are alleged to be infringed.

61. This principle was later reaffirmed by the Court of Appeal in the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR when the Court at paragraph 87(3) of the judgment stated as follows: -“It is our finding that the petition before the High Court was not pleaded with precision as required in Constitutional Petitions. Having reviewed the petition and supporting affidavit we have concluded, that they did not provide adequate particulars of the claims relating to the alleged violations of the constitution of Kenya and the Ethics and Anti-corruption Commission Act, 2011, accordingly the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”

62. The court in Peter Michobo Muiru vs Barclays Bank of Kenya Ltd & another [2016] eKLR while discussing the Principles enunciated in Anarita Karimi Njeru’s case observed as follows: -“The principle, as this court has previously stated, does not however equate absolute precision. There is no need for absolute and artificial specificity: see Kevin Turunga Ithagi vs Hon. Justice Fred Ochieng & 5 Others (No.1) HCCP No.442 of 2015 [2015] eKLR. The general approach should be that each case must be independently viewed and understood by the court and where the court as well as the Respondent can painlessly identify and understand the petitioner’s case as well as the constitutional trajectory the case takes, then the merits of the case ought to be ventured into. Stalling the case through the technicality of want of formal competence will take a back seat. As was stated in the case of Donovan Earl Hamilton –v- Ian Hayles (Claim No. 2009 HCV 04623) by the Supreme Court of Judicature in Jamaica, the striking out of pleadings in constitutional petitions should be done only in the clearest of cases.The principle established in the Anarita Karimi Njeru’s case should thus not be applied line hook and sinker and the court must always be cautious to avoid impeding the course of justice by denying a party access to the court: see Samuel Gunja Sode & Another vs The County Assembly of Marsabit & 2 others [2016] eKLR, Nation Media Group Ltd –v- Attorney General [2007] 1 EA 261 as well as the Court of Appeal decision in Peter M. Kariuki –v- Attorney General [2014] eKLR.”

63. It is thus well settled law that in a constitutional petition therefore, a party is not supposed to merely cite constitutional provisions. He/she must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation and state some particulars of alleged infringement to enable the respondent to be able to respond to each allegation accordingly.

64. I have perused the petition and I do note that the Petitioner did indeed cite Articles 2(b),4,19,20,21,22(1), ,23,24,40 and 63 purportedly infringed but only set out the manner in which Article 40 is alleged to be infringed, as set at paragraphs 13 to 15 thereof.

65. In my view, it is incorrect to state that the petition has not met the threshold of a constitutional petition. Some articles do not require to be elaborated as they merely refer to general rights and powers under the Constitution. In any case, the Petitioner’s claims are easily discernible from the Petition, application and the Affidavits filed. It is also evident from the responses and submissions filed by the Respondent that it was able to understand the issues in controversy.

66. I therefore decline to accept the argument that the Petition was imprecisely drafted.

67. Now to the third issue. The Respondent in their grounds of opposition stated that the petition does not disclose any constitutional question for determination and that issues raised in the petition arose from contractual obligations between private parties that can be resolved through ordinary civil suit.

68. Litigants are indeed discouraged from using constitutional petitions to prosecute matters which can be pursued through other statutory procedures and there is no shortage of decided cases on this principle of the law.

69. In Bernard Murage vs Fineserve Africa Limited & 3 others [2015] eKLR, Lenaola, J (as he then was) cautioned that:-“55. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute….56. I am bound to follow that principle of law since it flows from the other important principle that not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”

70. The same message was stressed by the Court of Appeal in Gabriel Mutava & 2 others vs Managing Director Kenya Ports Authority & another [2016] eKLR thus:-“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation.….this Court has severally held that where a fundamental right is regulated by legislation, such legislation, and not the underlying constitutional right, becomes the primary means for giving effect to the constitutional rights….Of course violations of constitutional rights may nonetheless be different, and more serious than the violations of statutory or contractual rights. There is no clear demarcation however, where one violation begins and ends, and when one violation should attract desperate remedies. In employment matters, such as was the case here, the contract of employment should have been the entry point. The terms and conditions of employment in the contract, govern the employment relationship, except to the extent that the terms are contrary to the law; or have been superseded by statute. Certainly invoking the constitutional route in the circumstances of this case was misguided. The Constitution should not be turned into a thoroughfare for resolution of every kind of common grievance.A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done.”

71. A perusal of the petition and submissions made before this Court disclose that Petitioner has alleged specifically the violation of her rights to property enshrined under Article 40 of the Constitution. However, it must be remembered that the crux of her case is based on a lease contract between herself and the Respondent in which she categorically claims that despite paying for the leased premises in issue the respondent has not granted her vacant possession of the same.

72. The question then would be whether the Applicant had duly paid for the leased premises as per the lease agreement and if so, whether the respondent denied her lawful occupation thereof. In my opinion, the court can answer these questions, but not through a constitutional petition.

73. I have also considered the prayers sought in the petition and it is crystal clear that they have nothing to do with rights and fundamental freedoms under the Bill of Rights. The Applicant has unnecessarily pushed to the fore the violation of the constitutional rights yet the dispute substantially is private law rights that would lie in an ordinary suit brought to enforce contractual obligations.

74. In the case of COD and Ano vs Nairobi City water & Sewerage Company (petition 419 of 2015 (2015) eKLR the Court held that the Constitution cannot be used as a general substitute for normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the Applicant to invoke the jurisdiction of the High court under article 163. The Court sitting as a constitutional Court must through the doctrine of avoidance steer clear of determining disputes as if there were constitutional questions being raised.

75. The Supreme Court in Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR held that the principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.

76. Having carefully perused the material before me, I come to the inevitable conclusion that this petition offends the doctrine of constitutional avoidance. The petitioner would have been able to get all the remedies sought in a normal suit filed in court through a plaint. A finding that there was a breach of the contract on the part of the respondent would be sufficient for the court to make any of the other awards sought by the petitioner.

77. In the circumstances, I find that the petition in so far as it seeks the enforcement of a right under a contract, is misconceived. In this respect, I fully agree with the position taken by Hon. Chacha, J. in Godfrey Paul Okutoyi vs. Habil Olaka [2017] eKLR that:“It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a Court of law in the manner allowed by that particular statute or in an ordinary suit as provided for by procedure. It is not every failure to act in accordance with a statutory provision or where an action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum and in the manner allowed by the applicable law and procedure.”

78. It would be easy to say that the court ought to deal with substantive justice rather than technical issues. However, if there is no finding that there is any violation of a constitutional right, the court will be proceeding on an exercise in futility.

79. For the foregoing reasons, I find that the objection, to the extent that the petition does not raise any constitutional questions, succeeds and I uphold the same.

80. Consequently, I do proceed to strike out the Petitioner’s Application and Petition. The petitioner may, if she so wishes file a proper suit to seek redress.

81. I will now deal with the last issue, that of costs.

82. Section 27 of the Civil Procedure Rules indicates that it is considered trite law that costs follow the cause/event and the “event” means the result of the entire proceedings incidental to the litigation. It is also not to be lost that the order as to costs is at the discretion of the court.

83. In organ Air Cargo Limited vs Evrest Enterprises Limited [2014] eKLR the court noted that;“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”

84. Further, in the case of Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 Others (2013) eKLR the court cited with approval the words of Murray C J in Levben Products vs Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 where he held that:“It is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion ...But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at....In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so."

85. In Valentine Odhiambo & 2 others vs HF Development & Investment Ltd & another [2021] eKLR, in regards to costs the court opined as follows:-“The Court wishes to express itself on the issue of costs. Although the Court rules that the petition offends the doctrine of Constitutional avoidance, and will indeed proceed to strike it out for being an abuse of the process of Court, it does not mean that the Court does not have the jurisdiction to adjudicate over the issues between the Petitioners and the Respondents when they are brought in the proper form. The Court agrees with the statement by Odunga J in the Martin Lemaiyan Makoosio Case (Supra). The Court’s finding is only that the dispute ought to have been brought as an ordinary Civil Suit not a constitutional petition. For this reason the Court will not condemn the petitioners to pay the costs of the suit. The striking-out has also happened early enough even before the close of pleadings.”

86. I am persuaded by the above authorities. Whereas the petitioner has been found to have come to court in an inappropriate manner, the court has not made any finding on the merits of her claim. Now that the petition has been struck out early enough, in exercise of my discretion, I will not burden the petitioner with an orders as to costs. Each party will thus bear their own costs.

DATED, SIGNED & DELIVERED IN NAKURU THIS 6TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferMr. Korir for RespondentMiss Kamau for Murimi for Applicant