1.By a petition dated March 22, 2022, the petitioners are seeking a declaration that the petitioner’s fundamental rights and freedoms as guaranteed underarticle 40 of the Constitution of Kenya were contravened by the respondent and consequently grant an order of inhibition and a permanent injunction restraining the respondent by himself or his agents or assignees from leasing out or interfering with the petitioners use of land Nos. Kibirichia/Ntumburi/3500 and 3498 as well as costs of the petition.
2.The petition was supported by facts set out in the petition and the affidavit of Geoffrey Kinoti Mugambi, the 3rd petitioner sworn on March 22, 2022.
3.The respondent was duly served but never entered appearance nor defended the suit.
The Petitioners Case
4.The petitioners’ case in a nutshell is that they are the biological children of the respondent who is the registered owner of the suit properties. The petitioners averred that their fundamental rights and freedom are at risk of being contravened and grossly violated by the respondent who has disregarded the Constitutional Rights of the petitioners and has hatched plans to dispose of the land where the petitioners were born and brought up and which they depend on.
5.The petitioners averred that on diverse dates between October, 2010 and June 2016, the respondent hatched plans to sell the initial land registration No. Kibirichia/Ntumburi/57 before subdivision, but the petitioners upon realizing the respondent’s schemes filed ELC Petition No.21 of2015. That after mediation, the respondent agreed to subdivide the land and transfer portions thereof to the petitioners and as a consequence, the petitioners agreed to withdraw the said suit on July 10, 2019. The petitioners accused the respondent of breaching the mediation agreement by subdividing the land parcel No. Kbirichia/Ntumburi/47 into the suit properties herein and declined to transfer portions into the petitioners names.
6.The petitioners averred that the respondent has been bringing prospective purchasers into the suit parcel of land with the intention of selling the said parcels of land. That the respondent has caused the land registrar Imenti North to issue a notice to the 3rd petitioner herein asking him to show cause why he should not remove a caution placed on land Parcel No. Kibirichia/Ntumburi /3500. The petitioners are apprehensive that if the caution is removed, the said land will be alienated to their detriment and leave them destitute.
7.The petitioners further averred that the respondent, who abandoned them when they were kids after their mother died in 1988 and did not educate them is now desirous of alienating the suit properties. They stated that the initial parcel No. Kibirichia/Ntumburi/57 was registered in the name of the respondent to hold as trustee for the petitioners by their grandfather. The petitioners averred that the respondent is in breach of his duties as a trustee and that his actions are in violation of the petitioners’ Constitutional Rights and are illegal.
8.In the affidavit in support of the petition, the petitioners have annexed copies of official searches, copy of consent and pleadings in ELC petition No. 21 of 2016 and minutes as well as a copy of a letter dated February 10, 2021 from the Land Registrar, Meru Central.
The Petitioners’ Submissions
9.In their submissions datedApril 20, 2023, M/s Kaimenyi Kithinji & Co. Advocates for the petitioners gave a brief of the petitioner’s case and submitted that the claim by the petitioners is one of trust. That the property was ancestral land passed on from generation to generation adding that the petitioners do not know any other land except the suit land where they were born and brought up.
10.Counsel for the petitioners further submitted that by virtue of section 30 (g) of the Registered Land Act cap 300 (now repealed), the petitioners are protected for having possessory and occupational interests over the suit properties as an overriding interest by the fact that they grew up there until they got married. Counsel for the petitioners relied on the case of Malcolm Bell v Hon Daniel Toritich Arap Moi & another Sup Ct Application No 1 of 2013 in which the court held that one needed not to be in actual physical possession and occupation of land to prove the existence of trust.
11.Counsel for the petitioners further submitted on the issue of customary trust and relied on the case of Obiero v Opiyo & others 1972) EA 227, and Esiroyo v Esiroy (1973) EA 388. The petitioners’ counsel also cited section 28 (b) of the Land Registration Act and articles 27 and 40 of Constitution of Kenya.
Analysis and Determination
13.Having analysed the pleadings and the submissions filed, I find that the following issues are for determination-;a)Whether the petition raises any constitutional issueb)Whether the petitioners are entitled to the prayers sought.
14.In order to appreciate the issues raised in the petition, one has to go through all the paragraphs therein, the affidavit in support and annextures as well as the submissions filed. What I can deduce from the pleadings is a claim based on customary trust. The petitioners allege that the respondent who is their father and who is the registered owner of the suit properties is trying to alienate the properties which the petitioners claim to be ancestral land. It is the petitioners claim that the respondent is holding the suit properties in their trust. Indeed the petitioners advocate have submitted that the petitioners claim is one of trust.
15.In view of the foregoing, I have no doubt in my mind that the petition is premised on the alleged trust. I do not think that the dispute qualifies to be a constitutional issue. In my view, this is an issue that falls squarelly in the realm of private law. There are a host of authorities that elucidate the principles that private law claims should not form the basis of constitutional petitions and should be resolved by using the usual process of litigation. 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 Constitutional court. See the case of Abraham Kaisha Kanziku v Governor of Central Bank & others (2006) eKLR.
18.In the case of Patrick Mbau Karanja v Kenyatta University (2012) eKLR Lenaola J (as he then was) expressed himself as follows in regard to when the constitutional interpretative mandate of the court may be invoked-:
19.Lenaola, J (as he then was) went on to observe as follows after citing the above case-;
20.I fully associate myself with the sentiments expressed in the above refenced cases and I agree that matters that do not call for the court’s constitutional interpretative mandate under the bill of Rights provisions of the Constitution should not be disguised as constitutional petitions seeking enforcement of the Bill of Rights. There ought to be a clear delineation of constitutional matters and the ordinary civil suits. In the present matter it is clear that the petitioners are seeking for a share of their father’s parcels of land by virtue of alleged customary trust that has no constitutional underpinning at all. It is a matter that ought to have been filed as an ordinary civil suit.
23.It is therefore my findings that the petition has no merit and the same is dismissed. Considering that the respondent did not file any response and taking into account the relationship of the parties who are children and their father, I make no order as to costs.
24.It is so ordered.