Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2018] KEELC 933 (KLR)

Pharis Ndung’u Chege & 4 others v Attorney General & 4 others [2018] KEELC 933 (KLR)

Environment and Land Court
12 October 2018
DOD. O. Ohungo
6,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a land rights petition, doubting the validity of titles obtained over public land originally meant for a stadium.

What this practically means

#

Executive summary

#
The petitioners, claiming to be displaced allottees resettled on 4.93 acres carved out of LR 23400 in Naivasha, petitioned under Articles 40, 47 and 50 of the Constitution after the respondents fenced off the land on 11 November 2013. They sought declarations, an injunction, vacant possession and costs. The 1st respondent did not participate; the 2nd to 5th respondents opposed, contending the land was allocated by the Commissioner of Lands to the Municipal Council of Naivasha in 1998 for a stadium - a public purpose - and that the petitioners' acquisition was irregular. The court first held that although the supporting affidavit predated the petition, this was a procedural technicality that did not invalidate the petition, applying Article 159(2)(d). On the merits, the court examined the petitioners' titles, since Article 40(6) excludes unlawfully acquired property. It found the petitioners' resettlement theory implausible: they paid stand premium about eight years after their allotment letters; contemporaneous correspondence between the Provincial Physical Planning Officer, the Town Clerk and Delamere mentioned only a stadium, never resettlement; Delamere disowned the subdivision; and the first petitioner was mayor of Naivasha when the transactions occurred. The court expressed grave doubt about the validity of the titles but made no formal nullification, as no such relief was sought. It further held that Articles 47 and 50 were not breached since the titles remained intact and no invalidation process had commenced. The petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Validity of the petition where the supporting affidavit predates the petition

Holding

The petition is valid; the defect is one of form, not substance

Reasoning

Rule 11(1) of the Practice and Procedure Rules 2013 makes an affidavit optional; proceedings may even begin orally or by letter. Article 159(2)(d) requires the court to favour substantive justice over procedural technicalities. The court relied on the Court of Appeal's restatement in Martha Wangari Karua that procedural rules should not undermine the cause of justice.

p. 4
02

Whether petitioners established Article 40 property rights over the suit properties

Holding

No - the court had grave doubt about the validity of the titles, which are the foundation of the Article 40 claim

Reasoning

The land (LR 23400) was allocated by the Commissioner of Lands to the Municipal Council of Naivasha in 1998 for a stadium, a public purpose. The petitioners' claim that 4.93 acres was carved out to resettle displaced persons was implausible: they paid stand premium 8 years after the allotment letters; contemporaneous letters never mentioned resettlement; and Delamere disowned the subdivision. The first petitioner, a former mayor, was the main face of the transaction.

p. 8
03

Whether Articles 47 and 50 rights were violated

Holding

No - titles were intact and no invalidation process had been undertaken, so no breach of fair administrative action or fair hearing

Reasoning

The petitioners' complaint was invasion of property, not invalidation of titles. Their entitlement to fair hearing and fair administrative action would arise if and when an invalidation process is undertaken, but for now no violation of Articles 47 and 50 was established.

p. 8

Legal principles established

#
  • A supporting affidavit predating a constitutional petition is a procedural technicality that does not invalidate the petition, per Article 159(2)(d)
  • A supporting affidavit is not a mandatory requirement for a constitutional petition under the Mutunga Rules
  • A court may examine the acquisition of a title before extending Article 40 protection, since Article 40(6) excludes unlawfully acquired property; a void title is a nullity

Court orders

#
  1. 1.Petition dismissed
  2. 2.Each party to bear own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 40 (including 40(6))
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 65
  • Constitution of KenyaChapter Five
  • Land Registration ActSection 26
  • Registration of Titles Actcap 281
  • Registered Land Actcap 300
  • Land Acquisition Actnot specified
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4(1) and 11(1)

Cases cited (6)

  • Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others
    [2018] eKLR
  • Henry Muthee Kathurima v Commissioner of Lands & another
    [2015] eKLR
  • Adan Abdirahani Hassan & 2 Others v The Registrar of Titles, Ministry of Lands & 2 Others
    [2013] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Benjamin Leonard Macfoy v United Africa Company Limited (UK)
    [1962] AC 152
  • Redcliff Holdings Limited v Registrar of Titles & 2 others
    [2017] eKLR
Jurisdiction invoked
Articles 40, 47 and 50 of the Constitution; transferred from the High Court (transfer noted, no jurisdiction challenge)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Pharis Ndung’u Chege & 4 others v Attorney General & 4 others [2018] KEELC 933 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/933/eng@2018-10-12

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