Tarus & 51 others v Attorney General & 4 others; Kebenei & 14 others (Interested Parties) [2023] KEELC 16953 (KLR)

Tarus & 51 others v Attorney General & 4 others; Kebenei & 14 others (Interested Parties) (Environment and Land Constitutional Petition 8 of 2020) [2023] KEELC 16953 (KLR) (20 April 2023) (Ruling)

Neutral citation: [2023] KEELC 16953 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment and Land Constitutional Petition 8 of 2020

EO Obaga, J

April 20, 2023

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 3(1), 19(1)(2), 21(1), 28,29,40 & 43 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA/PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS/PRACTICE & PROCEDURE RULE/RULES 1, 2, 3,4,10,111,20,21, 33 AND IN THE MATTER OF SECTION 18,37,38 & 43 OF THE LIMITATION OF ACTIONS ACT AND IN THE MATTER OF ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF ABUSE, THREAT TO ABUSE & INGRINGEMENT OF THE PETITIONERS’ HUMAN AND FUNDAMENTAL CONTITUITIONAL RIGHTS AND IN THE MATTER OF A PORTION OF TIUTLE NO. KIPLOMBE/KIPLOMBE BLOCK ii (FORMERLY KNOWN AS LR. NO. 9723 (IR15449) SERGOIT RIVER FARM

Between

Erick Kibiwott Tarus

1st Petitioner

Ludia Samoei

2nd Petitioner

Kelmas Investment Limited

3rd Petitioner

Japhate Kipkemboi Magut

4th Petitioner

Ezekiel Rono

5th Petitioner

Sergoit River Cattle Dip

6th Petitioner

Registered Trustees, AIC Church

7th Petitioner

The Borad Of Sergopit River Farm School

8th Petitioner

Paulina Chuma

9th Petitioner

Elija Chemaiyo

10th Petitioner

Lilian Jeruto Kitur

11th Petitioner

Stanley Kiptoo Metto

12th Petitioner

Wilfred Kimalat

13th Petitioner

Quands Achim

14th Petitioner

Joshua Kiprotich Magut

15th Petitioner

Rosa Jerubet Biwot

16th Petitioner

Jepleting Mitei

17th Petitioner

Joan Bearnard Sichard

18th Petitioner

Gracentini Sichard

19th Petitioner

Samwel Kiprono Samoei

20th Petitioner

Paul Kipsang Mengech

21st Petitioner

Edward Kiplagat Soi

22nd Petitioner

Martha Onyangore

23rd Petitioner

Bernate Anyango

24th Petitioner

Mary Nekesa Sogho

25th Petitioner

Augustine Lelit

26th Petitioner

Norbart Mangi Muya

27th Petitioner

Monica Jeruto Ruto

28th Petitioner

Nicholus Rop Kipkemboi

29th Petitioner

Nelson Kiprono Orgut

30th Petitioner

Benjamin Kuto

31st Petitioner

Linus Cheruiyot

32nd Petitioner

Paul Kipkorir Sum

33rd Petitioner

Kimutwal Cheruiyot

34th Petitioner

Joseph Komen

35th Petitioner

Sisuma Investment

36th Petitioner

Bri Rop

37th Petitioner

David Kimurei Mengich

38th Petitioner

Joseph Kibet Rotich

39th Petitioner

Peres Jemeli Koimur

40th Petitioner

Francis Osano Omwenga

41st Petitioner

Daniel Komen

42nd Petitioner

Joshua Kipleting Sulai

43rd Petitioner

John Kipkemboi Koech

44th Petitioner

Prof Gabriel Misango Anabwani

45th Petitioner

David Kiptalam Bett

46th Petitioner

Mary Oloo Sila

47th Petitioner

Dr Silvano Kipyego Rotich

48th Petitioner

Everline Jepkemboi Keino

49th Petitioner

Barabara Lagai

50th Petitioner

Prof Martin Henry Kimurei

51st Petitioner

Wilson Chuma

52nd Petitioner

and

The Hon Attorney General

1st Respondent

National Land Commission

2nd Respondent

Chief Land Registrar

3rd Respondent

Estate Of Esmail Nurani

4th Respondent

Estate Of Nyongio Kimitei

5th Respondent

and

Zadrack Kebenei

Interested Party

Japheth Kipkemboi Magut

Interested Party

Wilfred Kiptum Kitur

Interested Party

Grace M Sicard

Interested Party

Nerbert Maingi Muya

Interested Party

Benson Kipchumba Cherono

Interested Party

Margaret Jemisto Tuitoek

Interested Party

Judith Chebet Kemboi

Interested Party

Lilian Jeruto Kitur

Interested Party

Elijah Chemaiyo

Interested Party

Wilfred Kimalat Kitur

Interested Party

Martha Onyangore

Interested Party

Joan Jepkorir Komen

Interested Party

Benjamin Kuto

Interested Party

Nelson Orgut

Interested Party

Ruling

1. This is a ruling in respect of two preliminary objections filed by the 4th and 5th Respondents. The preliminary objection by the 4th Respondent raises the following ground: -1. The present suit drafted and filed as a constitutional Petition does not raise any constitutional issues and therefore calls for the invocation by this Honourable court of the doctrine of constitutional avoidance as espoused by the Supreme court in the case of Communications Commissions of Kenya & 5 others – Vs- Royal Media Services Limited & 5 others (2014) EKLR.

2. The 5th Respondents preliminary objection is based on the following grounds: -1. That the Petitioners Constitutional petition filed herein does not raise any constitutional issues as enshrined under to Articles 3(1) 21(1), 28, 19, 40 and 43 of the Constitution of Kenya as read with Rule 1,2,3,4,10,11,20,21 and 33 of the Constitution of Kenya (Protection of Rights and Fundamental Freedom, Practice and Procedure Rule).2. That the Petition is a replication to Eldoret HCC Petition No 3 of 2019 which has already been determined.3. That the petition is sub-judice as there is a similar cause of action vide Eldoret Environment & Land Cour No 40 of 2019 where Petitioners and the Defendants have fully defended the suit.4. That petition is an abuse of the court process and should be dismissed with costs to the 5th Respondent.

3. The parties were directed to file written submissions in respect of the two preliminary objections. The 5th Respondent filed submissions on October 19, 2021. The 4th Respondent did not file submissions but relies on the submissions of the 5th Respondent. The 1st Petitioner filed submissions on January 16, 2023. The 2nd to 52nd Petitioners filed submissions on October 28, 2022. the 1st to 15th Interested Parties filed their submissions on February 21, 2023.

4. I have gone through the submissions filed. There are two issues for determination in this matter. The first is whether the grounds raised in the preliminary objections meet the threshold of what a preliminary objection should be. The second is whether this suit is sub-judice.

5. A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. Ltd –Vs- West End Distributors Ltd (1969) EA 696 as follows: -'A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection on jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.'

6. The court in the Mukisa Biscuit Manufacturing Co Ltd (Supra) went on to state as follows: -'A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.'

7. Both the 4th and 5th Respondent have argued that the petition herein does not raise constitutional issues. This is not a pure point of law which will qualify as a preliminary objection. This is because the court will have to considered all the pleadings filed to ascertain whether the petition raises constitutional issues or not.

8. The issue of this petition being a replica of petition No 3 of 2019 is also not a pure point of law. In any case, petition No 3 pf 2019 was struck out as it was filed in a court without jurisdiction to entertain it. Even if the 5th Respondent was to raise a point of res judicata, it will not succeed as the petition was not heard on merits.

9. The other grounds raised is that this petition is subjudice. The reason is that there is ELC No 40 of 2019 pending in court where the parties in this petition are also involved. A constitutional petition is a special way of raising matters which touch on public bodies. A civil case on the other hand involves disputes between individuals and at times public bodies. The two cannot be said to be the same. Therefore, even if the parties are the same and the subject matter is the same, it will depend on the reliefs sought in each of the two cases. This is the reason why it is not desirable to consolidate a constitutional petition with an ordinary civil suit. It is therefore not appropriate for one to raise the issue of subjudice. The two suits are better handled separately.

10. Whether the petition is subjudice or an abuse of the court process will require the court to examine the two suits carefully to ascertain whether there is abuse of the process of court or subjudice. I therefore find that the two preliminary objections have no merits. I proceed to dismiss both preliminary objections. Each party shall bear their own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 20TH DAY OF APRIL, 2023. E. O. OBAGAJUDGEIn the virtual presence of;Ms. Munene for Mr. Gathara for 2nd to 52nd Petitioners.Mr. Ondieki for Interested parties and for Ms. Barasa for 4th Respondent.Ms. Kosgei for Mr. Omboto for 5th Respondent.Court Assistant –LabanE. O. OBAGAJUDGE