Kitheka (Suing as administrator of the Estate of Kitheka Mweta) v Mwova & 8 others (Constitutional Petition E001 of 2021)  KEELC 351 (KLR) (26 January 2023) (Ruling)
Neutral citation:  KEELC 351 (KLR)
Republic of Kenya
Constitutional Petition E001 of 2021
LG Kimani, J
January 26, 2023
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 25(C); 47(1) AND 50(1) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ARTICLES 2(1); 19(1); 19(2); 19(3)(A),(B) AND (C); 20(1); 20(2); 20(3);20(4)(A) AND (B); 22(1);23(3); 25(A); 47(1); 159 2(B)(D) AND 162(2)(B) OF THE CONSTITUTION OF KENYA. AND IN THE MATTER OF: THE LAND ADJUDICATION ACT CAP 284 AND IN THE MATTER OF THE SPECIAL MINISTER APPOINTED FOR PURPOSES OF APPEALS UNDER SECTION 29 OF THE LAND ADJUDICATION ACT CAP 284. AND IN THE MATTER OF: THE RULING AND/OR AWARD OF THE DEPUTY COUNTY COMMISSIONER, KYUSO IN LAND APPEAL NO.395 OF 2011 DATED 13/8/2018
Kilonzo Kitheka (Suing as administrator of the Estate of Kitheka Mweta)
Alexander Mwendwa Mwova
Land Adjudication Officer-Kyuso
Deputy County Commissioner, Kitui Kyuso
Land Registrar (Mwingi)
Surveyor, Mwingi Kyuso
Rukia Ikuthu Muluki
John Kyalo Munyithya
Esther Kamoli Mwova
1.The Notice of Preliminary Objection dated 6th December 2021 is raised by the 1st Respondent on the points that:1)That this suit has been brought under a Petition whereas due to the weighty issues in contention, the same should have always been filed by way of a Plaint.2)That the decision rendered by the Minister was so delivered on 13/8/2019 over 2 years and 4 months back and this Petition is incompetent as the Petitioner should have filed an appeal within time.
2.The background to this petition is a dispute over a parcel of land between Nyamu s/o Kitheka and Kitheka s/o Mweta which matter started litigation at Migwani District Magistrate’s Case No. 31 of 1978 Nyamu S/O Nzeka vs Kitheka S/O Mweta and Mwingi Resident Magistrates court case N. 68 of 1994. When the area where the suit land is located was declared an adjudication section land parcel No 179 and later 597 and 734 became the subject of the dispute between Alexander Mwenda Mwova and Francis Kitheka Mweta the successors in title of the original disputation committee Case No. 20 of 2009, Arbitration Board Case No. 11 of 2010 and finally the Appeal to the Minister Case No. 395 of 2011.
3.The Petitioner claims in the petition that he exercised his rights of appeal under section 29 of the Land Adjudication Act in filing the appeal to the Minister but his rights to fair hearing under Article 50 (1) and right to fair administrative action under Article 47 (1) of the constitution were violated and in the process he was denied what he believes to be his right to the properties cited.
4.However according to the 1st Respondent, the parties exhausted all the available judicial processes in relation to the suit property and therefore the court lacks jurisdiction to hear the petition.
5.The 1st Respondent did not file any submissions in support of the preliminary objection.
The Petitioner’s submissions
6.The Petitioner submitted that a preliminary objection ought to raise matters that are pure on law and not on facts and cited the cases of Charles Onchari Ogoti v Safaricom Ltd & Another  eKLR and David Nyekorach Matsanga & Another v Philip Waki & 3 others  eKLR
7.On the test of what constitutes a true preliminary objection, the Petitioner cited the case of Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) EA 696. The 1st Respondent submitted and relied on the statement of Lord Newbold that “the improper raising of points by way of preliminary objection does nothing but unnecessarily increases costs and on occasion confuse the issues. This improper practice should stop. Counsel for the 1st Respondent further submitted that the court should award punitive costs against the 1st Respondent because his preliminary objection is so vague that it does not disclose which point of law it has raised.
Analysis and Determination
8.As noted above the 1st Defendant did not file any submissions with regard to the preliminary objection and on that basis alone the same ought to be dismissed for failure by Counsel to prosecute the same in accordance with the directions given by the court on 22nd March 2022. However, the Petitioner herein filed submissions and due to the heavy contestation between the parties in this suit and for purposes of disposing of the said objection on merit, I will proceed to consider the same.
9.According to the Black Law Dictionary a Preliminary Objection is defined as being:
10.The test of a true preliminary objection has been cemented in the now famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.  E.A. 696. The Court then held that:-
11.On the 1st ground in the preliminary objection, I am of the view that the same cannot be a point of law or even fact since a litigant has the freedom to choose what cause of action to litigate under either by way of a petition or a normal suit. Article 22(1) and (2) of the Constitution of Kenya(2010) provides that:
12.In order to be accorded the legal relief afforded by a Constitutional Petition, it is trite in law that anyone seeking declaration from the Court that their rights have been infringed must specifically state which rights have been infringed and how they have been infringed as was observed by the Court in the case of:Anarita Karimi Njeru v Republic  eKLR where the High Court held:
13.The Petitioner has stated in his Petition that his rights to fair hearing under Article 50 (1) and right to fair administrative action under Article 47 (1) of the constitution were violated and in the process he was denied what he believes to be his right to the properties cited. I do therefore find that the Petitioner has a right to be heard is well within his rights to file this Petition on behalf of his father’s estate.
14.Secondly, the 1st Respondent contends that the decision in the Minister’s Appeal was delivered on 13/8/2019 over 2 years and 4 months back and this Petition is out of time. The 1st Respondent has not supported this objection by pointing to any provisions of the law that limit the time for filing a constitutional petition.
15.Courts have held in numerous precedents that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights. In the case of the Mumbi Ngugi, J (as she then was) noted as follows:
16.The grounds raised in the 1st Respondent’s Notice of Preliminary Objection are in my view neither points of law or points that can render the petition struck out.
17.For the above reasons, the Notice of Preliminary objection dated 6th December 2021is hereby dismissed with costs to the Petitioner.
DELIVERED, DATED AND SIGNED AT KITUI THIS 26TH DAY OF JANUARY, 2023.HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGERuling read in open court in the presence of-Musyoki - Court Assistant