[2023] KEELC 21100 (KLR)
The court found that the petition was wrongly filed as an Environment and Planning civil case rather than as a proper constitutional petition. The procedural defect was fundamental and warranted the striking out of the petition without delving into the substantive merits of the alleged constitutional violations. The...
Source-derived case information.
- Citation
- [2023] KEELC 21100 (KLR)
- Parties
- Applicant: Samwel Yogo Kongo; Respondent: China Henan International Corporation Group Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition E001 of 2023
- Procedural Posture
- Environment and Land Petition / Ruling on Preliminary Objection/striking Out
- Outcome
- petition struck out
- Judges
- GMA Ongondo
- Legal Topics
- Right to Clean and Healthy Environment, Constitutional Petitions, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Yogo Kongo
Applicant
China Henan International Corporation Group Company Limited
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Preliminary Objection/striking Out
Legal Issues
- 1 Whether the petition was properly filed as an Environment and Planning civil case.
- 2 Whether the petition disclosed a cause of action under the cited constitutional provisions.
Ratio Decidendi
The court found that the petition was wrongly filed as an Environment and Planning civil case rather than as a proper constitutional petition. The procedural defect was fundamental and warranted the striking out of the petition without delving into the substantive merits of the alleged constitutional violations. The court emphasized the importance of adhering to correct procedural channels when seeking enforcement of constitutional rights, and relied on established authority distinguishing between striking out and dismissal of matters. As a result, the petition was struck out with no orders as to costs.
Court Disposition
petition struck out
Orders
- The petition is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Kongo v China Henan International Corporation Group Company Limited (Environment & Land Petition E001 of 2023) [2023] KEELC 21100 (KLR) (26 October 2023) (Ruling)
Neutral citation: [2023] KEELC 21100 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Petition E001 of 2023
GMA Ongondo, J
October 26, 2023
IN THE MATTER OF THE CONTRAVENTION, TOTAL VIOLATION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26,28,40,42 (a & b) 43 (1) (b and c), 69 (2), AND 70 (C), OF THE CONSTITUTION OF KENYA, 2010: AND IN THE MATTER OF ENFORCEMENT OF ARTICLES 20 (1), 22 (1), 23 (3), 42(a & b); 43 (1) (b & c); 69 (2) AND 70 (C), OF THE CONSTITUTION OF KENYA, 2010,
Between
Samwel Yogo Kongo
Petitioner
and
China Henan International Corporation Group Company Limited
Respondent
Ruling
1. The present Petition dated 1st October 2023 and lodged on 3rd August 2023 by the Petitioner, Samwel Yogo Kongo through Quinter Adoyo and Company Advocates, was wrongly brought as Environment and Planning civil case as filed herein. The same relates to alleged isolation of the Petitioner’s rights under, inter alia, Articles 69(2) and 70(c) of Constitution of Kenya, 2010.
2. I have noted a reply to the Petition dated 11th September 2023 by the respondent through Ms. Nyamurongi and company advocates duly filed herein on 12th September 2023.
3. I bear on mind the destruction between a matter struck out and dismissed one; see Ngoni Matengo Cooperative Marketing Union Limited versus Ali Mohammed Osman (1959) EA 577.
4. In the foregone, this petition which is wrongly filed is hereby struck out with no orders as to costs.
5. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMABAY THIS 26TH DAY OF OCTOBER 2023. G.M.A ONG’ONDOJUDGE