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Court of AppealDismissedCivil Appeal 277 of 2011· [2014] KECA 881 (KLR)

Lucy Mirigo & 550 others v Minister for Lands & 4 others

Court of Appeal
22 January 2014
Martha Karambu KoomeMK KoomePhilomena Mbete MwiluPM MwiluJOJO Odek
10,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that a decades-old promise to give land cannot be enforced in court, and land allocation is not a court's job.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Koome, Mwilu and Odek, JJA) dismissed this first appeal against Kasango J's refusal of mandamus. The appellants, former forest employees at Ontulili, claimed that President Jomo Kenyatta promised them land excised from Mt Kenya Forest through Legal Notices 68 of 1975 and 107 of 1977, but the excised parcels (LR Nos 13269 and 12234) were instead allocated to a company associated with the then Minister for Lands, JH Angaine, and later sold to Home Grown Kenya Limited. They sought mandamus to compel settlement on the land or, alternatively, land of equivalent size and quality. The Court held that mandamus cannot issue against private citizens, and that the appellants failed to demonstrate any specific statutory or constitutional duty owed to them that was breached. The appellants never took possession or occupied the land, so they were not squatters on it and held no registerable interest or beneficial trusteeship; the doctrine of rights in alieno solo was inapplicable. The Presidential promise was a future promise not underpinned by statute, unenforceable by mandamus, incapable of creating an interest in land, and failing the writing requirements of section 3(3) of the Law of Contract Act for want of privity, a letter of allotment and part performance. Article 28 does not impose a duty on government to allocate land to squatters; investigating historical land injustices is the mandate of the National Land Commission under article 67(1)(e). Mandamus was also inappropriate under the 2010 constitutional dispensation as it would interfere with the executive in resource allocation. The Court affirmed the dismissal, though for reasons entirely different from the trial judge, noting the judge erred in computing a 50-year delay without basis. Appeal dismissed with costs.

Key legal issues

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01

Whether mandamus could issue against the 4th and 5th Respondents

Holding

No - they are private citizens, not public bodies, and mandamus cannot issue against a person incapable of complying with it.

Reasoning

Mandamus compels a public body to exercise a duty bestowed by law or to judiciously exercise a discretionary power. The 4th and 5th Respondents are private companies/citizens with no power to allocate land. Following ex parte Ethan Njau, an order cannot issue where compliance is not within the person's power; the order sought must of necessity fail against them.

p. 10
02

Whether any statutory duty owed to the Appellants was breached by the 1st, 2nd and 3rd Respondents

Holding

No - the Appellants failed to demonstrate any specific statutory or constitutional obligation vested in the public Respondents that was violated.

Reasoning

Mandamus compels performance of a statutory public duty. The burden was on the Appellants to adduce evidence of a constitutional or statutory duty owed and breached. No provision was cited imposing an obligation in their favour; the failure to point to any statutory duty was fatal to the application for mandamus.

p. 11
03

Whether the Appellants were squatters with enforceable third-party rights

Holding

No - they never took possession or occupied the land, and had no registerable interest or beneficial trusteeship; rights in alieno solo was inapplicable.

Reasoning

The suit parcels were registered in the name of the 5th Respondent and transferred to the 4th. The Appellants never took physical possession or occupied the land, so they were not squatters on it. The doctrine of rights in alieno solo recognizes easements, licenses, profits, restrictive covenants, overriding interests and mortgages - none of which the Appellants held.

p. 11
04

Whether the Presidential promise to allocate land was enforceable

Holding

No - a future promise not underpinned by statute is unenforceable by mandamus and cannot create or convey an interest in land.

Reasoning

Under section 3(3) of the Law of Contract Act, a contract for disposition of an interest in land requires a memorandum in writing signed by the party to be charged. There was no privity of contract or estate, no letter of allotment, and no part performance by possession. A promise to enter into a contract is not enforceable, and the future interest never vested within the rule against perpetuities period.

p. 12
05

Whether mandamus was an appropriate remedy under the 2010 Constitution

Holding

No - mandamus is discretionary, would interfere with the executive in resource allocation, and would be contrary to Chapter Five of the Constitution.

Reasoning

Mandamus is neither a writ of course nor a writ of right. Under the 2010 Constitution, land is classified as public, private or community, and the National Land Commission has distinct functions; the 1st to 3rd Respondents no longer have discretion to allocate land to individuals. Granting mandamus would constitute judicial interference with the executive arm of government.

p. 15
06

Limitation period for mandamus

Holding

There is no statutory limitation period for mandamus; reasonableness of delay governs, but the Court declined to pronounce on computation, noting the trial judge erred in arriving at 50 years without basis.

Reasoning

Order 53 rule 2 provides a six-month period for certiorari but none for mandamus; delay is measured by reasonableness between cause of action and filing. The cause of action arguably arose in 1970, 1975/1977 or 1995. Having found mandamus inappropriate and no enforceable interest, the Court declined to pronounce further, save that the judge erred in computing 50 years without indicating the event from which it was computed.

Legal principles established

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  • An order of mandamus cannot issue against private citizens who are not public bodies.
  • A promise by the President to alienate or allocate land is not enforceable in law and cannot create or convey an interest in land.
  • Mandamus compels performance of a statutory public duty; failure to point to a specific statutory duty breached is fatal to the application.
  • Article 28 of the Constitution does not impose a constitutional duty on government to allocate land to any squatter or person.
  • It is not the duty of courts to allocate land; the National Land Commission is mandated to investigate historical land injustices under article 67(1)(e).

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Judgment in the Appeal applies to the two consolidated Miscellaneous Civil Applications being Meru HCC Misc App No 71 of 2003 and Meru HCC Misc App No 218 of 2004

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A, 3B
  • Civil Procedure Actsections 1A, 1B
  • Civil Procedure Rulesorder 53 rule 2
  • Constitution of Kenya, 2010articles 1, 10, 28, 40(b), 61, 67(1)(e), 76, 159(1)
  • Law of Contract Actsection 3(3)
  • Limitation of Actions Actsections 7, 9

Cases cited (20)

  • Commissioner of Lands v Kunste Hotel Limited
    Civil Appeal No 234 of 1995

    Distinguished - certiorari for right to be heard, unlike present mandamus claim to proprietary interest

  • District Commissioner, Kiambu v Republic and others ex parte Ethan Njau
    [1960] EA 109

    Mandamus cannot issue against a person if compliance would not be within his power

  • Jabane v Olenja
    [1986] KLR 661

    First appellate court will not lightly differ from trial judge's findings of fact

  • Kabiru, Francis v Minister for Lands & another
    Petition No 66 of 2010

    Mentioned by appellant in support of constitutional duty to allocate land

  • Manyasi v Gicheru & 3 others
    [2009] KLR 687

    Mandamus can issue against a public body where statute imposes a clear and qualified duty

  • Morgan v Stubenitiky
    [1977] KLR 188

    Requirements of writing and signature under section 3(3) Law of Contract Act

  • Mungai, Douglas Mbugua v Harrison Munyi
    Civil Application No 167 of 2010

    Overriding objective requires a broad view of justice

  • Mureithi & 2 others v Attorney General & 4 others
    [2006] 1 KLR (E&L) 707

    Judicial review matters must be filed promptly; 40-year delay hopelessly outside reasonable limit for mandamus

  • Republic v Director-General of East African Railways Corporation ex parte Kaggwa
    [1977] KLR 194

    Mandamus does not lie as a matter of course; discretion refused where it would constitute judicial interference with the executive

  • Selle & another v Associated Motor Boat Co Ltd
    [1968] EA 123

    First appeal is by way of retrial; court must reconsider and evaluate evidence itself

  • Shah v Attorney General (No 3)
    [1970] EA 543

    Courts proceed with extreme caution in granting mandamus against executive officers

  • Transouth Conveyors Ltd & another v Kenya Revenue Authority & 3 others
    [2008] KLR 216

    Mandamus compels a public body to exercise a duty bestowed by law

  • Wagichiengo v Gerald
    [1988] KLR 406

    Section 3(3) Law of Contract Act writing requirements

  • Modderklip Boerdery v President Van Die RSA en Endere
    2003 (6) BCLR 638

    Cited by appellant on state duty towards squatters and internally displaced persons

  • R v Barnet London Borough Council ex parte Shah
    [1983] 2 AC 309

    Where challenger has no entitlement, remedy is quashing order, not order compelling benefit

  • R v Dunsheath, ex parte Meredith
    [1950] 2 All ER 741

    Mandamus is neither a writ of course nor a writ of right

  • R v Lancashire County Council ex parte Gayer
    [1980] 1 WLR 1024

    Courts must not usurp the administrator's role in deciding resource allocation between competing claims

  • Re Bristol and North Somerset Railway Co
    (1877) 3 QBD 10

    Mandamus refused where performance of the duty is impossible

  • Re Stern
    (1962) Ch D 732

    Rule against perpetuities - interest must vest within 21 years

  • Tichborne v Weir
    (1892) 67 LT 735

    A squatter has no privity of estate that runs with the land

On appeal from
High Court of Kenya at Meru
Meru HC Misc. App No. 218 of 2004 consolidated with Meru HC Misc. App No. 71 of 2003
Jurisdiction invoked
Appellate Jurisdiction Act (cap 9), sections 3A and 3B - first appeal from High Court judicial review decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Mirigo & 550 others v Minister for Lands & 4 others", Case Analysis (2014). Civil Appeal 277 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/881/eng@2014-01-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.