[2012] KEHC 1933 (KLR)

[2012] KEHC 1933 (KLR)

The court held that while Article 40 of the Constitution protects property rights, such rights must be acquired in accordance with the law and disputes regarding property ownership should be resolved through the statutory mechanisms provided, not by constitutional petition unless there is a clear constitutional...

Source-derived case information.

Citation
[2012] KEHC 1933 (KLR)
Parties
Petitioner: Tony Munene; Respondent: The Commissioner of Lands; Respondent: Thika Lands Board; Respondent: DCIO Thika Police Station; Respondent: Njoka & Njoka (K) Limited; Respondent: Davis Nyamu Njoka; Respondent: Attorney General
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
9 October 2012
Case Number
Petition 322 of 2012
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/strike Out
Outcome
petition struck out
Judges
DAS Majanja
Legal Topics
Property Rights, Fraudulent Acquisition, Jurisdiction, Access to Court
Source Language
english
Land and Property Constitutional Law Property Rights Fraudulent Acquisition Jurisdiction Access to Court

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Summary, issues, holding and outcome

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Parties

Tony Munene

Petitioner

The Commissioner of Lands

Respondent

Thika Lands Board

Respondent

DCIO Thika Police Station

Respondent

Njoka & Njoka (K) Limited

Respondent

Davis Nyamu Njoka

Respondent

Attorney General

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection/strike Out

Legal Issues

  1. 1 Whether the petitioner.s property rights under Article 40 of the Constitution were violated.
  2. 2 Whether the High Court is the proper forum for the dispute or if it should be heard by the Environment and Land Court.
  3. 3 Whether constitutional petitions can bypass established statutory dispute resolution mechanisms.

Ratio Decidendi

The court held that while Article 40 of the Constitution protects property rights, such rights must be acquired in accordance with the law and disputes regarding property ownership should be resolved through the statutory mechanisms provided, not by constitutional petition unless there is a clear constitutional violation that cannot be addressed otherwise. The court found that the dispute was essentially a property dispute concerning ownership and alleged fraud, which should be ventilated in the proper forum, namely the Environment and Land Court, as established by the Constitution. The petition was therefore struck out to allow the parties to pursue their claims through the appropriate...

Court Disposition

petition struck out

Orders

  • The petition is struck out.
  • No order as to costs.