Pharis Ndung’u Chege v The Attorney General & 8 others
The bottom line
#Kenya's Court of Appeal dismissed landowners' constitutional claims because they could not prove their titles were validly obtained in the first place.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial Judge abdicated his duty by examining the validity of the appellants' titles when the petition concerned rights under Articles 40, 47 and 50
The Judge did not abdicate his duty; where a rights claim is hinged on the existence of valid titles and validity is challenged, the Judge was obliged to examine the titles first.
The appellants' constitutional claim rested entirely on their titles. Since the respondents challenged the validity of those titles in their replies, the Judge could not assess the claimed rights without first determining whether the titles were prima facie valid. The Court declined to find any abdication, noting that a title that is a nullity is non-existent and cannot anchor a claim to protection under Article 40.
Whether the appellants established infringement of their rights under Articles 40, 47 and 50 of the Constitution
No. Without establishing prima facie valid ownership, the appellants could not meet the Anarita Karimi Njeru threshold, and no violation of the rights claimed could arise.
The rights claimed accrued from ownership of the suit parcels. The evidence cast doubt on the legitimacy of the titles: conditions in the allotment letters may not have been fulfilled, and DEL's letters showed the donated land was solely for a stadium, with the subdivision later recanted as procured by misrepresentation. A constitutional rights claim founded on questionable ownership documents has no foundation and fails on a balance of probabilities.
Whether the trial court could resolve the competing claims on affidavit evidence
On the strength of Fanikiwa Limited v. Sirikwa Squatters Group, competing claims to land ownership require viva voce evidence with cross-examination; the Judge however was correct not to make a definitive finding on validity since neither party had pleaded it.
The Court applied the Supreme Court's holding in Fanikiwa that disputed ownership of land must be resolved through a trial process with examination and cross-examination of witnesses, not affidavit evidence alone. At the same time, it endorsed the trial Judge's restraint in refraining from a definite finding on the validity or invalidity of the titles, as no party had pleaded or sought such a declaration.
Legal principles established
#- A certificate of title is prima facie evidence of ownership but cannot be erected as a barrier to an inquiry into its legality; the right to property under Article 40 does not extend to unlawfully acquired property.
- Where a constitutional petition is anchored on title to land and the validity of that title is contested on disputed facts, the court must direct a trial with viva voce evidence rather than determine the matter on affidavit evidence alone.
- An allotment letter is only complete upon fulfillment of its conditions, and an allottee cannot pass valid title unless title is acquired through registration.
- A claimant alleging violation of constitutional rights must satisfy the Anarita Karimi Njeru threshold: identifying the rights infringed, the constitutional provisions and the manner of infringement, proved on a balance of probabilities.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.No order as to costs
- On appeal from
- Environment and Land Court, Nakuru
- Petition No. 20 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010, Article 164); appeals consolidated with the consent of the parties on 19th June 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamau v Attorney General & 11 others (Environment and Land Petition E008 of 2025) (Environment and Land) [2026] KEELC 4233 (KLR)[2026] KEELC 4233 (KLR)9 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Pharis Ndung’u Chege v The Attorney General & 8 others", Case Analysis (2025). Civil Appeals Nos. 27 to 31 of 2019 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/884/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.