Introduction
1. The petitioners instituted the instant suit (constitutional petition) seeking among other orders; an order of permanent injunction to restrain the respondents by themselves, their servants and/or agents from trespassing, entering, interfering and/or invading land parcel LR 498/125 (also known as Eldama Ravine Township Block 1/232); an order of permanent injunction to restrain the 1st to 6th respondents by themselves, their servants and/or agents from interfering, developing, depositing and/or erecting any structures on a portion of the public road reserve known as Shimoni-Mercy-Moringwo Road; an order cancelling the registration of the 1st to the 6th respondents as either proprietors and/or allotees of their respective land parcels; an order compelling the 7th, 8th and 9th respondents to mark and register the encroached, acquired, subdivided and transferred portion of the road as a public road reserve; an order compelling the 10th respondent to amend the survey records as may be necessary to indicate the encroached, acquired, subdivided and transferred portion of the road as a public road reserve.
2. Simultaneously with the suit/petition, the petitioners filed the notice of motion, dated 27th June, 2025 seeking the following orders: -
a) Certification of the application as urgent and deserving to be heard on priority basis;
b) An order of temporary mandatory injunction compelling the respondents to grant the applicants quiet possession of the portion of land parcel LR 498/125 now Eldama Ravine Township Block 1/232 and a portion of the public road known as Shimoni-Mercy-Moringwo pending the hearing and determination of the application and the suit;
c) An injunction restraining the 1st - 6th respondents by themselves, their servants and/or agents from trespassing, entering, interfering and/or invading a portion of land parcel LR 498/125 now Eldama Ravine Township Block 1/232 and interfering, depositing any construction materials and/or erecting any structures on a portion of the public road known as Shimoni-Mercy-Moringwo pending the hearing and determination of the application and the suit;
d) An injunction restraining the 1st -6th respondents by themselves, their servants and/or agents from interfering with and/or invading land parcel LR 498/125 and from interfering, depositing any construction materials and/or erecting any structures on a portion of the public road known as Shimoni-Mercy-Moringwo pending the hearing and determination of the application and the suit;
e) The OCS Eldama Ravine police station do ensure compliance of the orders
f) Costs of the application be provided for.
3. As can be discerned from the averments in the petition/notice of motion and the affidavits sworn in support thereof, the suit is premised on alleged encroachment of the parcel of land known as LR 498/125 now Eldama Ravine Township Block 1/232 by the 1st to the 6th respondents; alleged irregular, fraudulent and/or unlawful conversion of a public access road to private land and allocation of title deeds and letters of allotment in respect of a public access road to private individuals (1st to 6th respondents) by the 7th to 10th respondents and/or their agents.
4. It is the petitioner’s case that the actions of the respondents complained of are a violation/breach of their constitutional rights particularly the right to property and movement and the right to be heard before a decision likely to adversely affect their rights is made.
5. The petitioners lament that their attempts to get their complaints regarding the alleged violations of their constitutional and legal rights addressed by the 7th to the 10th respondents have been futile.
6. Terming the petition and notice of motion an abuse of the process of the court, the 6th respondent filed a notice of preliminary objection, dated 20th July 2024 seeking to strike out the petition and the notice of motion with costs on the following grounds: -
i) The pleaded dispute relates to a claim for trespass to land which ought to be litigated by way of a plaint being a civil dispute and the court ought to invoke the doctrine of constitutional avoidance to refrain from exercising jurisdiction over the matter;
ii) The pleaded case is a claim for recovery of land which arose in the year 2011 as averred in the petition and deposed in the affidavit in support and which is time barred by section 7 of the Limitation of Actions Act, Cap 22 having been brought 13 years later;
iii) The reliefs of interlocutory prohibitory, mandatory and perpetual injunctions as sought by the petitioners are equitable reliefs which are sought over matters that arose more than 6 years ago and the court is bereft of jurisdiction to consider and entertain the same by dint of section 4(1)(e) of the Limitation of Actions Act, Cap 22;
iv) The pleaded case relates to a boundary dispute as between the 5th petitioner and the 1st -6th respondents and whose prescribed mode of dispute resolution has been well laid down and vested in the Land Registrar by section 18 of the Land Registration Act, Cap 300 as read with Regulation 40 of the Land Registration (General Regulations), 2017;
v) The petition and motion as instituted are incompetent as the 5th Petitioner is a body corporate by dint of section 3(3) of the Trustees (Perpetual Succession) Act, Cap 164 whose registered trustees namely Rt. Rev. Maurice Muhatia Makumba, Very Rev. Fr. Lawrence Mbogo and Rev. Fr. Simon Kamau ought to act and move the court without delegation to a stranger to the incorporated trust such as the 1st petitioner;
vi) The 5th petitioner has no competent petition and motion as the purported authority has not been duly executed by the 3 registered trustees and authenticated by affixing the corporate seal as required by section 3(3) of the Trustees (Perpetual Succession) Act, Cap 164;
vii) The court is bereft of jurisdiction to order the police to supervise compliance of its orders in a civil matter as there exists prescribed modes of execution under the law.
7. In response to the issues raised in the preliminary objection, the petitioners through the replying affidavit of the 1st petitioner (Pius Kiprop Kibet) sworn on 8th January, 2025 have inter alia deposed that the petition does not only raise issues of trespass but raises other serious constitutional violations that can only be ventilated in a constitutional petition; that section 7 of the Limitation of Actions Act as well as the doctrine of adverse possession is not applicable to public land being government land; that reliefs and claims arising from constitutional breaches are not subject to the Limitation of Actions Act; that constitutional violations are not governed by the Limitation of Actions Act and that their claim is not time barred because the cause of action arose in 2022 when the 7th, 8th and 9th respondents failed to give feedback to them. Further, that matters raised in the petition and the application are not merely boundary disputes but serious constitutional breaches that cannot be adjudicated by the procedure on boundary dispute; that nothing stops the registered trustees of the 5th petitioner to authorize any person in writing conversant with the matters in question to act, plead and swear affidavits on their behalf pursuant to Order 1 Rule 13 of the Civil Procedure Rules and that it is not true that the authority to act and plead was not executed and sealed.
8. Terming the preliminary objection vexatious, fictitious, scandalous, mischievous, nonstarter, bad in law and an abuse of the court process, the petitioners urge the court to dismiss it with costs to them.
9. Pursuant to directions given on 20th January 2025, the preliminary objection was disposed off by way of written submissions.
Petitioners submissions
10. In their submissions filed on 18th February, 2025 the petitioners/applicants have more or less reiterated the contentions in their response to the preliminary objection.
11. The 1st, 4th and 6th respondents filed submissions on 24th March, 2025 by which time the court had written the ruling. Their submissions were therefore not considered.
Analysis and determination
12. From the petition, the application accompanying it, the preliminary objection thereto, the response to the preliminary objection and the submissions by the petitioners, I find the main issue for the court’s determination to be whether the petition raises issues that ought to be determined by a civil court as opposed to a constitutional court, otherwise put, whether this court should invoke the doctrine of constitutional avoidance in the circumstances of this case.
13. The doctrine of constitutional avoidance, was discussed in Brookside Dairy Limited v. Mohamed & another (Constitutional Petition E339 of 2022) (2022) KEHC 13627 (KLR) (Commercial and Tax) (13 October 2022) (Ruling) thus: -
“31. The doctrine of constitutional avoidance does not divest this court of the jurisdiction to hear and determine this matter. What the doctrine means is that while this court can indeed hear and determine this matter, it restrains itself to hear the same because there is another appropriate forum that can hear and determine the matter effectively.
32. The question as to what constitutes a constitutional question was determined in the case CNM V WMG [2018] eKLR where J Mativo stated:'20.In my view, this Petition does not raise constitutional questions at all. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values. The issues raised here will only require the Court to examine defamation law.21.The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others in which Justice O’Regan recalling the Constitutional Court’s observations in S vs Boesak notes that:-'The Constitution provides no definition of 'constitutional matter.' What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State, the interpretation, application and upholding of the Constitution are also constitutional matters. So too, is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.'
33.He further states,' Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore, the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.'
34.It is evident that for one to determine whether the argument raises a constitutional issue, the court should consider whether the argument forces the court to consider constitutional rights or values. The petitioner has brought this suit against the respondents for utterances that were made in a public rally by the 1st respondent. As to whether it raises a constitutional question, it would be necessary to examine the provisions alleged to be contravened and how they have been contravened and whether the petitioner has suffered any damage / loss as a result of the said contravention or violation.
35.It is also important to consider the nature of the orders sought in the petition, as to whether they fall under the ambit of those provided for under Article 23 (3) of the Constitution. If both aspects are in the negative, then the petition does not raise a constitutional question.
36.The doctrine of constitutional avoidance has been addressed in quite a number of decisions by our courts. It was expounded by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. Where court held as follows:-'(256) The appellants in this case are seeking to invoke the 'principle of avoidance', also known as 'constitutional avoidance'. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.'(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.'
37.In Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court stated;'30.So as to ensure that constitutional jurisdiction of the court is not misused, the doctrine of constitutional avoidance comes in handy. It frowns upon the practice of bringing ordinary disputes to the constitutional court. In that regard, the Supreme Court observed as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR.'Also see Council of County Governors v Attorney General & 12 others [2018] eKLR.
38.Justice J M Mutungi in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR observed that: -'Parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional petitions which is not proper where there is an alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitution court.'
39.In the case of Bernard Murage -vs- Fine Serve Africa Ltd & others (2015) eKLR the Court stated:-'Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exist an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.'
40.In the case of Godfrey Paul Okutoyi & others –vs- Habil Olaka & Another (2018) eKLR Chacha , J on the issue of there being an alternative remedy in lieu of constitutional remedies at paragraph 65 stated:-'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 by procedure. It is not every failure to act in accordance with a statutory provision or where 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 in the manner allowed by the applicable law and procedure.'
41.In the case of KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) Mativo J set out the exceptions to the doctrine of constitutional avoidance as hereunder: -Where the constitutional violation is so clear and of direct relevance to the matter, ii. In the absence of an apparent alternative form of ordinary relief and iii. Where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.25
42.The petitioner herein has raised issues on breach of Article 20, 27(1), and 33(2) (d) of the Constitution. The petitioner is aggrieved as a result of the utterances made during a public rally by the 1st respondent and has ascribed meaning to those utterances. This court will have to look into issues like whether the utterances meant that the petitioner exploits the dairy farmers who sell and supply milk to the petitioner as raw material for its business, whether it also means that the petitioner subjects the said farmers of suppliers to unfair treatment, whether the utterances are false, etc. In my humble view this petition does not raise a constitutional question.
43.This question will be better and effectively determined in a civil court on what the alleged utterances meant and whether they were false or not. In as much as the petitioner makes reference to Article 33(2) (d) and 27 of the Constitution, this court will have to determine the issues aforesaid before it can eventually determine the issue of breach of the said Articles. The key grievance here is whether the utterances were in the first instance made and whether they mean what the petitioner is alleging. The court will also have to determine whether the utterances are false and consequently whether the petitioner should be compensated or not. If that other court agrees with the petitioner then it will grant the effective remedies. It is therefore not the only course that will give the petitioner the remedy it seeks. I am guided by the case of KKB v SCM & 5 others (supra) wherein it was stated,36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause.
44. In conclusion I find that this petition offends the doctrine of constitutional avoidance and does not raise a constitutional question. Let the petitioner file its claim before the correct forum. The upshot is that the preliminary objection succeeds and the petition is struck out with costs. Orders accordingly.”
14. In applying the above principles to the circumstances of this case, whereas the petitioners contend that the petition raises serious issues which can only be heard and determined by a constitutional court, I find the issues raised in the petition to be issues touching on encroachment to land and alleged irregular/illegal/unlawful alienation of public land comprised in a public access road. Those issues in my view, ought to be addressed in a civil suit as opposed to a constitutional petition.
15. There is nothing constitutional in a claim that a person or a group of persons has encroached into private or public land thereby violating the rights of the owners of the land encroached on or members of public who have right to use a public access road. Such a dispute is purely a civil dispute that ought to be litigated in the ordinary way and not through a constitution petition.
16. Having determined that this court sitting as a constitutional court is not the right forum to determine the dispute brought before the court, I decline to address the other issues raised in the preliminary objection and reserve them for determination by the court with requisite jurisdiction to hear and determine the dispute should the petitioners opt to file a fresh suit before that court.
17. The upshot of the foregoing is that the preliminary objection has merit and is allowed in the sense that I strike out the petition dated 27th June 2024 together with the accompanying notice of motion with costs to respondents.
18. Orders accordingly.
Dated, signed and delivered this 26th day of March, 2025.
Ruling delivered Virtually in the presence of:
- Mr. Ndungu for the Petitioners.
- No appearance for the Respondents.
- Ian – Court Assistant.