Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2016] KEELC 1097 (KLR)
The bottom line
#A Kenyan court ruled that property rights protection doesn't cover unlawfully acquired land, and such disputes require witnesses testifying in person, not just written statements.
What this practically means
#Executive summary
#Key legal issues
#Whether the right to property under Article 40 protects a title alleged by the State to have been unlawfully acquired
The court has jurisdiction, within the petition seeking protection, to determine whether the title was lawfully acquired and to decline protection or cancel it if unlawfully acquired
Article 40 protects property rights, but by Article 40(6) those rights do not extend to property found to have been unlawfully acquired. Such a finding must flow from an acceptable, legitimate and legally acknowledged process. Where no prior finding exists, the court hearing the Article 40 petition may itself make the finding, declare the title unlawfully acquired, cancel it and order appropriate registration.
Mode of hearing - whether the petition should be determined on affidavit evidence or oral evidence
The weighty factual questions on the legality of the title require oral evidence; the earlier direction for affidavit hearing was changed
Serious questions of fact - whether the land was set aside as a public utility, whether it lawfully devolved to private individuals, and whether it is designated for a police station - cannot be answered solely on the affidavits filed. Rule 20(3) of the 2013 Practice and Procedure Rules permits the court, on application or its own motion, to direct oral evidence, and the court invoked that power.
Legal principles established
#- Article 40(6) protection does not extend to unlawfully acquired property, and a court seized of a petition under Article 40 has jurisdiction within those proceedings to find a title unlawfully acquired and decline to protect or even cancel it
- Under Rule 20(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the court may direct that a petition or part thereof be heard by oral evidence, including on its own motion
Court orders
#- 1.That the earlier direction that the petition be heard by affidavit evidence is set aside and the petition be heard by way of oral evidence
- 2.That the parties prepare and exchange their lists of witnesses and witness statements, and the bundle of documents they will rely upon, within 30 days
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010 (petition alleging breach of the right to property)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2016] KEELC 1097 (KLR)", Case Analysis (2016). Petition No. 32 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1097/eng@2016-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.