1.This ruling is in respect of a preliminary objection dated 27th February, 2023 by the 1st, 2nd, 3rd 8th, 9th, 10th, 11th, 12th, 13th 14th, 15th and 16th respondents (hereinafter referred to as the respondents) seeking to have the petition 28th April 2022 struck out with costs on the grounds that-:
2.The preliminary objection which was opposed by the petitioners, was canvassed by way of written submissions. The respondents’ submissions are dated 25th April 2023 and filed in court on 8th May 2023 through the firm of Coulson Harney LLP while the petitioners’ submissions are dated 3rd April 2023 and 18th June 2023 and filed on 8th April 2023 and 20th June 2023 respectively.
The 1st, 2nd 3rd 8th, 9th, 10th 11th 12th, 13th, 14th, 15th and 16th Respondents’ Submissions
3.In their submissions, the respondents gave a brief introduction and background of the petition herein and pointed out that they are yet to substantively respond to the petition largely because the same does not disclose any cause of action against the respondents. Further, that the petition as drafted is bereft of particulars of the alleged complaints against the said respondents that they can effectively respond to. That presently, they are unaware in what manner they have infringed the petitioners’ rights under the constitution as alleged.
4.The respondents identified two issues for the court to determine, that is whether the petition has been pleaded with reasonable precision as per the required standard in constitutional petitions and whether to the extent that the petitioners have petitioned the National Land Commission in relation to their historical claims to the properties mentioned in the petition, this court should defer jurisdiction to the National Land commission in accordance with the constitutional doctrine of avoidance.
5.Regarding the first issue, the respondents submitted that the threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Limited Vs West End Distributors Limited (1969) EA 696 as cited with approval by the Supreme Court in Application No. 50 of 2014 Aviation & Allied Workers Union Kenya Vs Kenya Airways Limited & 3 others  eKLR as follows-;
6.Counsel for the respondents also relied on petition No.38 of 2017 Dismas Wambola Vs Cabinet Secretary Treasury & 5 others  eKLR and submitted that the preliminary objection is based on a pure point of law that subject to the court’s endorsement, will dispose of the petition.
7.The respondents submit that it is a well-established principle in constitutional litigation that a party alleging violation of his or her Constitutional Rights must plead with a reasonable degree of precision the manner in which there has been such alleged violation. They relied in the decision of the Court of Appeal in the case of Anarita Karimi Njeru Vs Republic (1976-1980) KLR 1272 where the court stated-;
8.It is the respondents’ submission that the Articles of the constitution which accord rights to the petitioners must be precisely enumerated and the claim pleaded to demonstrate such violation with the violations being particularized in a precise manner. Further, that the manner in which the alleged violations were committed and to what extent must be shown by way of evidence based on the pleadings. The respondents relied on the Court of Appeal decision in Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others  eKLR and a decision by Lenaola J ( as he then was ) in Dr. Rev. Timothy Njoya Vs The Hon. Attorney General & Kenya Review Authority  eKLR and submitted that the judicial pronouncements in the said decisions endorse the clear edicts of Rule 10 (2) of the Mutunga Rules which inter alia provide that the petition shall show the petitioner’s name and address, the facts relied upon, the constitutional provisions violated, the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit, and the reliefs sought by the petitioner.
9.The respondents submitted that considering the petition in the above context, the petitioners save for citing the Constitutional Provisions in the title of the petition, have not stated how the respondents have violated Article 1,2,3,(1), 10,9 – 23 (1), 25(1), 27, 35,40, 43, 47, 48, 50, 60, 63-69 and 156 (6) of the Constitution as alleged and the injury caused or likely to be caused to them as relates to the properties mentioned on the title to the petition. That the petition is based on the generalized allegation that the respondents participated in the forceful displacement of the petitioners from their lands and specifically singled out paragraph 4 of the petition. The respondents submitted that the petitioners have not provided particulars of the allegations of organized cruel and forcible detainer and neither have they disclosed the manner in which the constitution has been violated in this regard. Further, that there are no particulars presented of the properties mentioned on the title to the petition and to whom they belong to, which of the petitioners’ forefathers were supposedly dispossessed of the properties mentioned on the title to the petition through organized cruel and forcible detainer, by whom, when and in what manner. That it is further unclear whether the petitioners ever held an absolute and indefeasible title to the properties mentioned on the title to the petition.
10.The respondents further referred to paragraph 9 of the petition where the petitioners state that the consent of Meru Tribal Community have never been sought and/or given over the registration of the suit properties into the respondents at all so far, and stated that it should be noted that the petitioners have not disclosed the manner in which the constitution has been violated by the mere fact that the consent of the Meru Tribal Community was not sought and obtained prior to the registration of the properties in favour of the current owners, which they noted, the petitioners have failed to indicate.
11.Further, the respondents submitted that the petitioners have not given the particulars of illegality and have not disclosed the manner in which the constitution has been violated by the alleged registration of a 944 year leasehold tenure over the properties mentioned on the title to the petition as stated in paragraph 11 of the petition and that they have also failed to provide the particulars of alleged funding from the Agricultural Finance Corporation as stated in paragraph 12 of the petition. The respondents further submitted that the petitioners have not provided the particulars of loss of occupation and user and the manner in which the constitution has been violated as alleged under paragraph 14 and 15 of the petition.
12.The respondents further submitted that to the extent that the petitioners have joined 25 respondents to the petition, it was incumbent upon them to specify how each of them has violated which one of the petitioners’ constitutional rights and relied on the case of Hon. John Mbugua & 10 others Vs Hon. Attorney General & 54 others  eKLR. The respondents argued that the whole object of pleadings is to bring clarity to an issue but that looking at the petition as drafted, they cannot decipher the issues they are required to respond to due to a lack of particulars. The respondents therefore submitted that the petition does not meet the threshold established in the Anarita Karimi case (supra)
13.Regarding the second issue, the respondents submitted that whilst this court has jurisdiction under Article 67(2)(e) of the Constitution to hear and determine any claim relating to historical injustice whether the National Land Commission ( the “NLC”) is seized of the matter or not as held by the Court of Appeal in Chief Land Registrar, & 4 others vs Nathan Tirop Koech & 4 others  eKLR, it is their submission that in the circumstances of this suit, the court should defer jurisdiction to the NLC to conclude its investigations into the petitioners complaints. The respondents submitted that under section 14 of the National Land Commission Act, the NLC has the power to review grants and disposition of public land to establish their propriety and legality, and that where the NLC under Section 15 of the Act find that the title was acquired in an unlawful manner, it should direct the registrar to revoke the title. The respondents added that guided by the provisions of Article 67 and 68(c) (v) of the Constitution and Section14 of the NLC Act, the NLC had jurisdiction to review all grants or dispositions of public land. That the jurisdiction in this context is extended only to public land or land that was previously public but was subsequently converted to private land.
14.The respondents invited the court to critically assess this case and make a determination whether it may best suited to be heard by this court or find that it is the NLC that would be best placed to address the issues raised in the petition. The respondents relied on the case of Henry Wambega & 733 others Vs Attorney General & 9 others  eKLR, and Communications Commission of Kenya & 5 others Vs Royal Media Services and 5 others, Supreme Court, Petition No. 14,14A,14B and 14C of 2014 which dealt with the doctrine of constitutional avoidance which requires courts to resolve disputes on a constitutional basis only when a remedy depends on the constitution, and submitted that considering the facts and circumstances of this case, the remedies sought by the petitioners could not turn on the constitution. The respondents reiterated that the petitioners have failed to demonstrate how the constitutional provisions cited in the title of the petition have been violated. The respondents argued that the NLC is bestowed with jurisdiction to handle the petitioners’ complaints and submitted that by doing so, the petitioners will not be prejudiced as their rights will be protected by the NLC.
15.In response to the petitioners’ contention that the respondents are not properly on record for not filing an appearance the respondent submitted tha the same is not true as they filed a notice of appointment of Advocate dated 2nd August 222 and served upon the petitioners on 3rd August 2022. On the petitioners’ contention that the petition is admitted on account of the respondents not filing a defence, the respondents argued that the provisions of the Civil Procedure Rules can be imported to fill any lacuna in the Mutunga Rules and relied on the Court of Appeal decision in Kari Wehner Claasen Vs Commissioner of Lands & 4 others  eKLR. The respondents further contend that there cannot be an entry in default or interlocutory judgment in a Constitutional Petition as applied under Order 10 Rules 5 and 6 of the Civil Procedure Rules. That the non-filing of a response to a petition cannot be deemed an admission under the Mutunga Rules because Rule 16(1) of those rules provides that “if a respondent does not respondent within the stipulated time in Rule 15, the court may hear and determine the petition in the respondent’s absence.” That where a response has not been filed within the stipulated timelines, a petitioner should set the petition down for hearing under Rule 20 of the Mutunga Rules. The respondents further reiterated that they are unable to respond to the petition as drafted as it is bereft of particulars that they can effectively respond to, hence the filing of the preliminary objection.
16.The respondents further urged the court to disregard the petitioners’ contention that the respondents have no locus to prosecute the preliminary objection for not filing letters of authority, and invited the court to note that save for the 1st, 2nd, 3rd and 16th respondents who are limited liability companies, the 8th, 9th, 10th 11th, 12th, 13th, 14th and 15th respondents are individuals who do not require any authority as alleged. It is further submitted that if the petitioners’ intention in making this agreement was to challenge the 1st, 2nd, 3rd and 16th respondents’ instructions to Coulson Harney LLP in coming on record on their behalf, then they should have filed a formal application that the respondents can effectively respond to, and not raise the issue of representation in submissions. The respondents submitted that the provisions of Order 9 Rule 2(a) & (c) and Order 11 of the Civil Procedure Rules are of no relevance to the preliminary objection considering the relevant provisions of the Mutunga Rules.
17.In conclusion, the respondents submitted that the preliminary objection is merited and should be allowed with costs to the respondents for the reasons that the petitioners have failed to plead with precision the constitutional violations, the particulars of their complaints against the respondents and the manner in which the constitution has been violated in relation to their complaints. The respondents argued that it is apparent from the petition that the petitioners have no legitimate interest in the properties mentioned on the title of the petition as they are not the registered proprietors. That on the contrary, the petitioners historical injustice claims are vague for lack of particulars and are not supported by evidence. The respondents therefore submitted that the petition should be dismissed with costs to the respondents.
The Petitioners’ Submissions
18.In their submissions, the petitioners gave a background of the petition, the preliminary objection and response and identified the following issues for determination.
19.The petitioners cited rule 4, 5 and 10 (Protection & Implementation of Basic Rights and Fundamental Freedoms) of the Constitution 2013 Practice & Procedure Rules ( the Mutunga Rules) and submitted that the preliminary objection is incompetent, defective, bad in law and an abuse of the court process and therefore fit to be struck out with costs for being in breach of Order 10 of the Civil Procedure Rules, Sections 60 – 62, 108 -131, 247, 253, 300, 317, 347 353, 373, 393 – 398 of the Penal Code, Sections 47 & 107 – 120 of the Evidence Act, Sections 9-11, 24 , 34 and 35 of the Advocates Act. The petitioner relied on the case of Cleaver Humer Ltd Vs British Tutorial (Africa) Ltd (1975) EACA 223 which held that “failure to file a defence operates as admission of all allegations in the plaint except as to damages.”
20.The petitioners further submitted that the National Land Commission is amongst the respondents in the petition and is therefore not qualified to adjudicate over the matter. The petitioners cited various Articles of the Constitution cited in the petition.
21.It is also the petitioners’ submission that the preliminary objection does not raise any point of law and relied on the case of Mukisa Biscuits Manufacturing Ltd Vs West End Distributors Ltd and Attorney General of the Republic of Kenya Vs Independent Medical Legal Unit (2011) EACA.
22.The petitioners further submitted that the 1st, 2nd and 3rd respondents are corporate entities whose authority is mandatory under Order 9 Rule 2(c) of the Civil Procedure Rules and argued that no resolution under corporate seal or power of attorney under the Stamp Duty Act have been exhibited, rendering the preliminary objection defective and incurably incompetent. It is the petitioners’ submission that the failure by the respondents to file a defence is an admission of the claim in the petition. The petitioners also relied on the case of Tarasicio Githaiga Ruithibo Vs Mbuthia Nyingi (1982) CA 21 (unreported).
23.The petitioners also submitted that Order 51 Rule 14 of the Civil Procedure Rules demands that a preliminary Objection be based on and supported by an affidavit sworn and filed by the subject respondents.
24.It is the petitioners’ submissions that the petition is strongly anchored on and flow from the Provisions Under Articles 3 (1), 10, 19 – 23 (1), 25, 28 31, 33, 35, 40 47, 48, 50 159, 165(3), 259 and 260 of the Constitution of Kenya and Rule 10 of the Mutunga Rules and that the petition is based on and flow from the trial of historical cruelties, inequities, oppressive racial injustices, brutalities, punctuated by cynical sadistic murders of the Meru people orchestrated and perpetuated by the respondents since 1919 in order to alienate the suit parcels of land under the ownership, occupation, control, management and exploitation of the petitioners. The petitioners submitted that the preliminary objection herein will not determine the petition without the respondents being compelled to furnish and tender evidence on the issue of avoidance of jurisdiction by this court to allow the National Land Commission dispose of the claims made. The petitioners denied the respondents argument that the petition does not demonstrate any cause of action. It is their submission that none of the respondents has filed a defence though they were all duly served. The petitioners urged the court to have the preliminary objection struck out and or dismissed and allow the petition to proceed for hearing.
Analysis and Determination
25.I have considered the preliminary objection raised and the rival submissions. The issues I find for determination are-;
26.The first issue hinges on the jurisdiction of this court and therefore can be raised at any time of the proceedings and even on appeal. This was the holding in the case of Jamal Salim Vs Yusuf Abdullahi Abdi & another Civil Appeal No. 103 of 2016  eKLR. The court can also raise such an issue on its own motion. In this case, the petitioners submit that the objection raised is incompetent.
27.The case of Mukisa Biscuits Manufacturing Ltd Vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection where it was held as follows-;
28.In the case of Owners of Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Limited 1989 1 KLR Nyarangi JA held as follows-;
29.In the case of Samuel Kamau Macharia & another Vs Kenya Commercial Bank Ltd & 2 others (2012) eKLR, the Supreme Court of Kenya held as follows-;
30.In the petition herein, the petitioners who state that they form the descendants of the Meru Tribe, accuse the respondents for forcible detainer and/ or unlawful occupation of the suit properties since 1929. Among the reliefs sought by the petitioners against the respondents are an order of permanent injunction, prosecution, compensation and nullification of the titles in respect to the suit properties now in the name of the respondents and have the same vested to the petitioners. My reading of the petition is clear that the petitioners have brought the petition on the claim of historical injustice. Whereas the respondents want the court to defer jurisdiction to the National Land Commission in accordance with the constitutional doctrine of avoidance, the petitioners are of the view that this court should determine the matter. The respondents pointed out that the petitioners have petitioned the National Land Commission in relation to their historical claims to the suit properties.
31.In the case of Chief Land Registrar & 4 others Vs Nathan Tiropt Koech & 4 others  eKLR which was relied on by the respondents, the Court of Appeal stated as follows-;
32.In the case of Safepak Limited Vs Henry Wambega & 11 others  eKLR, the Court of Appeal also considered the question whether it is within the mandate or jurisdiction of the ELC to deal with historical land injustice claims and held that the above passage in Chief Land Registrar & 4 others Vs Nathan Tirip Koech & 4 others ( above) “ accurately represents the state of the law on the matter and provides a complete answer to the appellant’s contention on jurisdiction.” The Court of Appeal also considered another issue whether a petitioner’s first port of call before approaching the ELC should have been the National Land Commission on which the specific function of carrying out investigations into historical land injustices is vested and held that;
33.The Court of Appeal in the above case held that the ELC was right in holding that it has jurisdiction over the matter. It can be noted from the above decision of the Court of Appeal, which is binding on me, that in as much as the NLC has a mandate to look into historical injustices, an individual can still commence a constitutional petition in a foundation of historical land injustice. It is therefore my finding that this court has jurisdiction over the petition herein, and I decline to defer jurisdiction to the National Land Commission. And just like in the above cited case, I have perused the material placed before the court. At page 100 of the petition, there is a letter dated 7th September, 2021 from the petitioners (and specifically the 1st petitioner) to the National Land Commission. In the said letter, the petitioners made an “application for the conversion of Land Reference Number 72262 & 2811/R also known as Kisima Farm located in Meru County from public land into community land in favour of members of Meru Cultural Centre.” The said parcels are part of the suit properties herein. The record however is silent on whether the National Land Commission acted as requested by the petitioners and if so, the outcome is not disclosed. That notwithstanding and having found that this court has jurisdiction to determine the matter, I will proceed to consider the other issue, which is whether the petition has met the constitutional threshold required in such petitions.
34.It is a well established litigation that a party alleging violation of his or her constitutional rights must plead with a reasonable degree of precision the manner in which there has been such alleged violation. This proposition was enunciated by the Court of Appeal in the case of Anarita Karimi Njeru Vs the Republic (1976 – 1980) KLR 1272 where the court stated-;
35.The Court of Appeal reaffirmed the above principle in the case of Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others (supra).
36.I have perused the petition herein. Save for citing the Constitutional provisions in the title of the petition, the petitioners have not stated how the respondents have violated Articles 1,2,3(1), 10,9-23(1), 25(1), 27, 25, 40, 43, 47, 48, 50, 60, 63-69 and 156(6) of the Constitution. I am in agreement with the respondents’ submissions that the petition is based on generalized allegations that the respondents participated in the forceful displacement of the petitioners from their lands. The petitioners have not provided particulars of the allegations of organized cruel and forcible detainer and neither have they disclosed the manner in which the constitution has been violated in this regard. In addition, there are no particulars presented of the properties mentioned in the petition and to whom they belong to, which of the petitioners’ forefathers were supposedly dispossessed the suit properties through organized cruel and forcible detainer, by whom, when and in what manner. Moreover, the petitioners have not specified how each of the respondents has violated any of the petitioners’ Constitutional Rights. As rightly submitted by the respondents, the whole object of pleadings is to bring clarity to an issue. However, looking at the petition as drafted, it is difficult to decipher the issues the petitioners want the court to determine.
37.In this case, the petitioners have enjoined 25 respondents in the petition. That means the petitioners must have a specific complaint against each of the respondents. In addition, the complaint must transcend ordinary claims on failure to comply with certain statutes to constitutional issues. Whereas the petitioners may have valid complaints against the respondents such cannot be prosecuted in an omnibus style. It is imperative that pleadings are drafted with certain degree of clarity and specificity as to accord a respondent a fair opportunity to know what the complaint is all about and to possibly prefer a response thereto. Given the nature of the petition and the gravity of the issues raised, there remains the need that the pleadings be crafted in such a manner as to demonstrate how each respondent violated which of the petitioners’ constitutional rights. (see Nairobi High Court Constitutional Petition No. E237 of 2011 – Hon. John Mbugua & 10 others Vs Hon. Attorney General & 54 others) (supra). It is therefore my finding that the petition does not meet the threshold for constitutional petitions established in Anarita Karimi case (supra) and must fail. The petitioners, in my view, will not suffer any prejudice as they can still pursue their application already lodged with the National Land Commission, the 21st respondent herein.
38.In the result, I find that the objection raised is merited to the extent that the petitioners have failed to plead with precision the constitutional violations, the particulars of their complaints against the respondents and the manner in which the Constitution has been violated in relation to their complaints, and therefore has not met the threshold established in Anarita Karimi Njeru (supra). Consequently, the petition is hereby struck out with costs to the 1st, 2nd, 3rd, 8th, 9th, 10th, 11th, 12th, 13th, 14th 15th and 16th respondents.