The written submissions
13.On 28/2/2023 directions were taken and parties agreed to canvass the Notice of Motion and Preliminary Objection together by way of written submissions.
14.The firm of Kangethe Waitere & Co. Advocates filed submissions dated 7/3/2023 on behalf of the Petitioner.
15.Opposing the Preliminary Objection the Petitioner argued that indeed the Petition raises Constitutional issues for this Court to determine. That the Respondent’s move to cancel the two title deeds issued in 1989 amounts to condemning the Petitioner unheard contrary to Articles 47 & 50 of the Constitution of Kenya. Moreover, the Petitioner’s proprietary rights under Article 40 of the Constitution of Kenya have also been violated.
16.That whilst the subject matters in the instant Petition and Kikuyu case are similar, the pleaded issues are very distinct. The Petition has set out with precision the violated Constitutional rights as stated in the case of Anarita Karimi Njeru v The Republic [1976-1980] KLR 1272.
17.Supporting the Motion, it was submitted that the Petitioner has satisfied the conditions for grant of conservatory orders as laid down in the case of Law Society of Kenya v Office of the Attorney General & Another; Judicial Service Commission (Interested Party)  eKLR. That this Court has discretionary power to stay proceedings in the Kikuyu case. That the prayers in this Petition should it succeed, would render the Kikuyu suit nugatory.
18.The Interested Party through the firm of Wamae & Allen Advocates filed submissions dated 8/3/2022 (sic). Both the Preliminary Objection and Notice of Motion were argued together by drawing three issues for determination to wit; whether the Petition and Application are fatally defective; whether the Petition meets the requisite threshold and whether the Petition is sub judice.
19.The first issue was answered in the affirmative. That the Petitioner has disguised a land dispute into a Constitutional Petition flying in the face of the case of CNM Vs WMG  eKLR that abhorred parties from converting every issue into a Constitutional question. That adequate remedies are provided for in Sections 79 & 80 Land Registration Act that the Petitioner would have pursued in light of the doctrine of exhaustion.
20.Regarding the Constitutionality threshold of the Petition, the Interested Party was emphatic that the Petition fails the standard set out in the Anarita case supra and as such ought to be dismissed in limine.
21.Last but not least the Interested Party argued that the Petition is sub judice by virtue of the Kikuyu case thus offending Section 6 of the Civil Procedure Act. He urged the Court to uphold the Preliminary Objection and dismiss Application and Petition with costs.
The Preliminary Objection
23.Appreciating the nature of a Preliminary Objection, that, if successful it can dispose of the entire suit; the Preliminary Objection shall be considered first. If it succeeds there shall be no necessity to determine the Application but in the converse the Application shall be determined.
24.The parameters of consideration of a Preliminary Objection are now well settled. A Preliminary Objection must only raise issues of law. The principles that the Court is enjoined to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd  EA 696. At page 700 Law JA stated:
25.At page 701 Sir Charles Newbold, P added:
26.For a Preliminary Objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit.
27.The question underpinning the Preliminary Objection is whether this Court can exercise its Constitutional jurisdiction over the Petitioners claim. That being the case I find that this is a pure point of law. The next question is whether the objection is merited.
28.The Petitioner has argued that his claim raises Constitutional issues that ought to be determined by this Court. The Court was urged to determine whether the cancellation of the Petitioners title of 2 acres issued in 1989 for parcel 1385 without notice to the Petitioner denied the estate of his father the opportunity to be heard thus condemned unheard in disregard to the provisions of Article 47 and 50 of the Constitution.
29.The Petitioner has narrated the history of the claim which stems from an alleged agreement between his father and the uncle of the Interested Party in 1971. That his father acquired 2 acres which title was later altered in 1989 by cancellation without notice leading to his father being issued with a title for 0.25 acres instead of the 2 acres he purchased. He averred that he and his family settled on the 2 acres after the sale and that he constructed a house in 1973 which he resides in todate. Moreover, he asserts that his brothers have constructed on the 2 acres and the family of the Interested Party live on the 0.25 acres todate. He faulted the Interested Party for obtaining a grant of letters of administration upon the death of his father in 2008 over the original parcel of 535 in 1992 when the said parcel was long closed on subdivision of the land into parcel 1384 and 1385. It was his argument that the titles were cancelled without notice and contrary to the provisions of the law(statute). He terms it an irregular act that led to deprivation of 2 acres of their title.
30.The Petitioner sought the following orders in the Petition;a.A declaration that the Petitioner’s right to property has been violated by the Respondent contrary to Article 40(1) of the Constitution of Kenya.b.A declaration that the Respondent’s action of altering the acreage of L.R Karai/Gikambura/1385 from 2 acres to 0.25 acres and the acreage of L.R. Karai/Gikambura/1384 from 0.25 acres to 2 acres and effectively cancelling the Petitioner’s title to Karai/Gikambura/1385 without notice to the Petitioner and without following the due process set out by law have contravened the Petitioner’s right to fair administrative action as enshrined under Article 47 of the Constitution of Kenya.c.An order of mandatory injunction directed at the Respondent to reverse the alteration of the acreage in L.R. Karai/Gikambura/1385 back to 2 acres and L.R. No. Karai/Gikambura/1384 back to 0.25 acres and reinstation the title deeds of the suit properties issue don 25th October 1989.d.A declaration that the entries numbers 3, 4, 5, 6 and 7 on the register of L.R. No. Karai/Gikambura/1384 have been made irregularly and the same are null and void.e.An order cancelling the title deed for L.R. No. Karai/Gikambura/1384 issued to the Interested Party on 3/6/2013 and an order cancelling entries No. 3, 4, 5, 6 and 7 on the registration of L.R. No. Karai/Gikambura/1384.f.An order of permanent injunction restraining the Respondent and the Interested Party and any other party from interfering with the Petitioner’s rights of ownership and possession over the title number Karai/Gikambura/1385 measuring 2 acres.g.An order halting all proceedings in Kikuyu MCELC No. 7 of 2020 (formerly Nairobi ELC No. 1199 of 2015 (O.S) and any other proceedings in relation to the suit properties pending the determination of this Petition.h.General damages for breach of the Petitioner’s rights of ownership of property under Article 40 of the Constitution.i.General damages for contravention of the Petitioner’s right to fair administrative action as envisaged under Article 47 of the Constitution.j.Costs of the Petition be borne by the Respondent.k.Any other relief or order that this Court may deem fit in the special circumstances of this matter.
31.The Interested Party has argued that the issues raised in the Petition are already before a competent Court of law for determination in Kikuyu MCELC No 7 of 2020. That there exists status quo orders in the pending suit; the cancellation arose following the decision of the Land Registrar in which the Petitioner participated and the titles called for cancellation; the Petitioner is guilty of laches for failing to challenge the title for over a decade. Finally, that the Petition does not raise any Constitutional issues given the cause of action is purely a land dispute.
32.I have perused the pleadings in Nrb ELC No 1199 of 2015 – See the Replying Affidavit to the Originating Summons sworn by the Petitioner has regurgitate the contents of the Petition to a large extent in defence of the Originating Summons.
33.It is trite that he who alleges must prove. The threshold for proving breach of Constitutional rights as in the instant case was set out in Anarita Karimi Njeru Vs Republic (1976-1980) KLR where it was held that;
34.That principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others eKLR where the Learned Judges emphasized that;
35.The Court of Appeal further added;(44)We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the Petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the Petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the Petition fell short of the very substantive test to which the High Court made reference to.”
36.In the case of Re Application by Bahadur  L.R.C (Cost.) 297 at 298, the Court held as follows;
37.In addition in the case of Minister of Home Affairs v Bickle & Others  L.R.C. Cost.755, held as follows;
38.I am guided by the case of Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021)  KEHC 11840 (KLR) where the Court held that
39.Picking the cue from the decisions of the Court above stated, I find that where the law provides for a mechanism to determine a dispute it is not necessary to resort to the Constitution. The Constitution should be left for Constitutional disputes. Not every case should be constitutionalized even in the face of clear statutory provisions as to how it should be determined.
40.I find the case of the Petitioner is that of title to land. According to the Interested Party it is a question of boundary demarcation but according to the Petitioner the question is whether the Petitioner is entitled to 2 acres or 0.25 acres. In either case the cause of action is a land dispute. The right mechanism to determine this is by Application of the land statutes.
41.This is one such case that, even if there are Constitutional issues raised in the Petition, such issues ought to await the consideration of the matters with respect to ownership before the lower Court.
42.Final orders for disposala.In the upshot the Preliminary Objection is merited. It is upheld.b.The Application dated the 13/10/2022 and the Petition be and are hereby struck out.c.The costs shall be in favour of the Interested Party.