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ELCDismissedPetition No. 510 of 2017· [2019] KEELC 4284 (KLR)

Simon Pasua Ole Kaanto v Chief Land Registrar; Safes & Locks (K) Limited & another (Interested Parties) [2019] KEELC 4284 (KLR)

Environment and Land Court
4 March 2019
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to block dealings on his former Kajiado plot because he waited 24 years and couldn't pinpoint which rights were violated.

What this practically means

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Executive summary

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The Petitioner sought an order prohibiting dealings over land title KAJIADO/LORNGUSUA/84, a declaration that he was entitled to all information from the Chief Land Registrar concerning the transfer of the land to the 1st Interested Party on 21st July 1992, and an order compelling the Respondent to furnish thirteen categories of supporting documents, alleging violation of his right of access to information under Article 35 of the Constitution. The Respondent filed grounds of opposition asserting no constitutional issue was raised, that such rights were not enforceable against it, and that the Petitioner was guilty of laches. The 2nd Interested Party, National Bank of Kenya, deponed that it lawfully exercised its statutory power of sale after the 1st Interested Party defaulted on a Kshs. 24 million charge, selling the land by public auction on 13th November 2015 for Kshs. 24.5 million to Cawa Enterprises. The court framed two issues: whether the Petitioner's constitutional rights were violated, and costs. Relying on Anarita Karimi Njeri, the court held the Petitioner failed to demonstrate with precision how his rights were infringed. The Respondent had supplied a Green Card extract of the Land Register confirming ownership; the Petitioner did not show what right or freedom the information was needed to protect, and any limitation was justified under Article 24. The Petition, filed 24 years after the transfer, was held statute-barred under section 7 of the Limitation of Actions Act, applying the Kenyatta University petition. The court inferred the transfer process was duly adhered to, noted the Petitioner did not join the current owner, and dismissed the Petition with costs to the Respondent and the 2nd Interested Party.

Key legal issues

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01

Whether the Petitioner's right of access to information under Article 35 was violated by the Chief Land Registrar

Holding

No violation; the Respondent supplied a Green Card extract of the Land Register confirming ownership, and the Petitioner failed to demonstrate what right or fundamental freedom the information was required to protect

Reasoning

The court noted the Respondent gave the Petitioner a copy of the Green Card, an extract of the Land Register confirming records of ownership. The Land Records had since changed hands as evidenced by the Certificate of Official Search. Under Article 35, access to information must be for the exercise or protection of a right or fundamental freedom, which the Petitioner failed to demonstrate. Any limitation was justified under Article 24.

p. 4
02

Whether the Petition is barred by limitation and laches given the 24-year delay since the 1992 transfer

Holding

Yes; the claim is statute-barred under section 7 of the Limitation of Actions Act and the Petitioner is guilty of laches

Reasoning

The Petition was filed 24 years after the 1st Interested Party was registered as owner. The Petitioner did not explain the delay, did not sue the 1st Interested Party, and did not join the current owner of the suit land. Applying section 7 of the Limitation of Actions Act and the reasoning in the Kenyatta University petition, the court found the delay unjustifiable and the claim a cover-up caught by limitation.

p. 4
03

Whether the transfer of the suit land to the 1st Interested Party was procedurally regular

Holding

The court inferred the transfer process was duly adhered to

Reasoning

The Registrar, as custodian of land records, entered details in the register and availed the Green Card to the Petitioner confirming ownership. The Mutation Form annexed to the 2nd Interested Party's affidavit showed the Petitioner himself undertook the mutation and subdivided the land. From this the court inferred the transfer process was duly adhered to.

p. 4

Legal principles established

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  • A petitioner alleging constitutional infringement must state and identify the rights violated with precision and how they were infringed
  • Constitutional petitions are subject to general principles of law including limitation; delay of over 20 years in seeking enforcement is unjustifiable

Court orders

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  1. 1.The Petition dated 25th January 2016 is dismissed
  2. 2.Costs of the Petition awarded to the Respondent and the 2nd Interested Party

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 22, 23, 24, 35
  • Land Registration ActSections 6, 7, 10, 12
  • Access to Information ActSection 4
  • Limitation of Actions ActSection 7

Cases cited (3)

  • Anarita Karimi Njeri v R
    (1976-1980) KLR 1272
  • Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission
    [2016] eKLR
  • Ochieng Kenneth K'Ogutu v Kenyatta University and 2 others
    High Court Petition No. 306 of 2012
Jurisdiction invoked
Articles 22 & 23 of the Constitution of Kenya (enforcement of the Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Simon Pasua Ole Kaanto v Chief Land Registrar; Safes & Locks (K) Limited & another (Interested Parties) [2019] KEELC 4284 (KLR)", Case Analysis (2019). Petition No. 510 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4284/eng@2019-03-04

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