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ELCOtherPetition dated 6th October 2014, filed 13th January 2015· [2018] KEELC 4704 (KLR)

Chesang Kipruto v National Police Service Commission & 3 others [2018] KEELC 4704 (KLR)

Environment and Land Court
24 January 2018
DOD. O. Ohungo
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to rule on a land rights petition because the owner's title validity needed live witness testimony, not just written affidavits.

What this practically means

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Executive summary

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The petitioner, a resident of Nakuru County, brought a constitutional petition filed on 13th January 2015 (dated 6th October 2014) against the National Police Service Commission and three state officers established under Articles 246(1), 155, 245 and 156 of the Constitution. He alleged that the respondents, in or about 2001, trespassed onto Nakuru Municipality Block 12/93, allocated to him on 23rd November 1998 by the Commissioner of Lands, using it as residences for senior police officers and deploying armed officers to lock him out. He sought declarations that these acts violated his rights to property, dignity, equality and security of person, general damages, and mandamus compelling payment of KShs. 10,000 per month from January 2002 and vacation of the property. The respondents opposed, contending that the property has been the official residence of Provincial Police Officers since 1941, was not available for alienation when the petitioner was registered, and remains public land. The parties had agreed to dispose of the petition by affidavit evidence and written submissions, and the court retired to write judgment. However, D. O. Ohungo J found that the validity of the petitioner's title could not be resolved on the affidavits: a lawful allotment would attract Article 40 and Section 26 of the Land Registration Act protection, while an irregular one would be a nullity under Article 40(6). Following Rosemary Wanjiru Njiraini, the court directed that the hearing start afresh by oral evidence, granted mutual leave to file amended pleadings, witness statements and paginated document bundles, ordered a mention for further directions, and made no order as to costs.

Key legal issues

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01

Whether the court should proceed to judgment on affidavit evidence

Holding

No; oral evidence is required to determine the validity of the petitioner's title

Reasoning

The court found it could not properly determine the matter without examining the validity of the petitioner's Certificate of Lease. If the allotment was lawful, Article 40 and Section 26 of the Land Registration Act protect the title; if irregular, Article 40(6) renders it a nullity. Parties had not adequately addressed the allotment issue, so a fair hearing demanded oral evidence.

p. 2
02

Whether a judgment delivered on an potentially invalid title would stand

Holding

A judgment founded on a title later found to be a nullity would itself be a nullity; a court should not act in vain

Reasoning

The court reasoned that if it delivered judgment in favour of the petitioner and the title later turned out to be a nullity under Article 40(6), the judgment would equally be a nullity. It therefore declined to rule on a record that could not resolve title validity, holding that a court of law should not act in vain.

p. 2

Legal principles established

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  • Where determination of a petition depends on the validity of a title and questions of fact inadequately addressed on affidavits, the court may direct that the matter proceed by oral evidence

Court orders

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  1. 1.Hearing of the matter to start afresh, by way of oral evidence
  2. 2.Petitioner granted leave to file and serve an amended petition (if need be) and List of Witnesses, Witness Statements, List of Documents and paginated bundle within 21 days
  3. 3.Respondents granted corresponding leave to file a response and their lists, statements and paginated documents within 21 days of service
  4. 4.Petitioner granted leave to file a response to the respondents' documents within 14 days of service
  5. 5.Mention date for further directions to be given

Authorities

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Legislation

  • Constitution of KenyaArticle 246(1)
  • Constitution of KenyaArticle 155
  • Constitution of KenyaArticle 245
  • Constitution of KenyaArticle 156
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 40(6)
  • Land Registration ActSection 26

Cases cited (1)

  • Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another
    [2017] eKLR
Jurisdiction invoked
Article 246(1), 155, 245 and 156 of the Constitution of Kenya (articles establishing the respondents); petition alleging violation of Article 40 rights

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chesang Kipruto v National Police Service Commission & 3 others [2018] KEELC 4704 (KLR)", Case Analysis (2018). Petition dated 6th October 2014, filed 13th January 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4704/eng@2018-01-24

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