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ELCStruck OutPetition No 11 of 2018 (formerly Nairobi Pet 161/2018)· [2019] KEELC 5025 (KLR)

John Njoroge Maina v Attorney General & another [2019] KEELC 5025 (KLR)

Environment and Land Court of Kenya
21 February 2019
MOM.C. Oundo
3,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his case because he relied on rumours instead of official proof that his land was being targeted for cancellation or acquisition.

What this practically means

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Executive summary

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The Petitioner, John Njoroge Maina, petitioned the Environment and Land Court at Nyahururu alleging threatened contravention of his rights under Articles 40 and 64 of the Constitution. He purchased 39.5 hectares being parcel No. Nyandarua/Ol Bolossat/2 at a public auction in 2001, obtained title in 2002, and had lived on the land since. In 2018, following the Cabinet Secretary for Environment's declaration of Lake Ol Bolossat as a protected wetland and an announcement by the Chairman of the National Land Commission that titles in the affected area stood cancelled, with the Nyandarua County Government undertaking forced evictions, he sought declarations that the threatened cancellation of title and eviction were unlawful, and a conservatory order maintaining the status quo. Neither Respondent filed a response, and the Petition proceeded by way of written submissions as uncontroverted evidence. The court framed two issues: whether the Petition disclosed a legal interest capable of protection, and whether the Petitioner's Article 40 right to property was violated. It found the Petitioner's registered title disclosed a protected interest, given the sanctity of title under Sections 24, 25 and 26 of the Land Registration Act. However, on the alleged violation, the court held the Petitioner bore the burden under Section 107 of the Evidence Act of proving the land was earmarked for compulsory acquisition. He produced no Gazette Notice of impending acquisition and no evidence of trespass by the Respondents, relying on uncertified internet material. The Petition, founded on mere speculation, was struck out with no orders as to costs as it was undefended.

Key legal issues

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01

Whether the Petition disclosed a legal interest capable of protection

Holding

Yes - the Petitioner, as registered proprietor of title No. Nyandarua/Ol Bolossat/2, disclosed a legal interest capable of protection

Reasoning

The Petitioner annexed his title deed to parcel No. Nyandarua/Ol Bolossat/2 as registered proprietor. Under Sections 24, 25 and 26 of the Land Registration Act 2012, registration vests absolute ownership, the rights of a proprietor are not liable to be defeated except as provided in the Act, and a certificate of title is prima facie evidence of absolute and indefeasible ownership. The court found these provisions assure and protect the sanctity of title.

p. 3
02

Whether the Petitioner's right to property under Article 40 was violated or threatened

Holding

No - the Petitioner failed to prove the alleged threatened compulsory acquisition or violation

Reasoning

Compulsory acquisition follows the elaborate procedure in Sections 107-133 of the Land Act 2012, requiring gazettement of intention, inquiry, and prompt payment of just compensation. The Petitioner alleged cancellation of titles and forced evictions based on a newspaper report and uncertified internet material, but produced no Gazette Notice evidencing impending acquisition and no proof of trespass by the Respondents. Under Section 107 of the Evidence Act the burden lay on the Petitioner, and the claim rested on mere speculation.

p. 5

Legal principles established

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  • A party alleging violation of constitutional rights bears the burden of proving the violation to the required standard under Section 107 of the Evidence Act
  • Sanctity of title to land is assured and protected under Sections 24, 25 and 26 of the Land Registration Act 2012

Court orders

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  1. 1.The Petition is struck out
  2. 2.No orders as to costs, the Petition having been undefended

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 64
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 2(5)
  • Constitution of KenyaArticle 27(4)
  • Constitution of KenyaArticle 65
  • Constitution of KenyaChapter Five
  • Land ActNo 6 of 2012, Sections 107-133, Part VIII, Sections 107-122, 108, 110, 111, 112, 113-119, 120-122
  • Registered Land Act (repealed)No 3 of 2012
  • Land Registration Act2012, Sections 24, 25, 26, 28
  • Land Acquisition Act (repealed)not specified
  • Wildlife Conservation and Management ActSection 5(1)
  • Evidence ActSection 107
  • Universal Declaration of Human Rights, 1948Articles 3, 12 and 17

Cases cited (7)

  • Hezekiah Mavasi Ondego & 8 Others vs County Government of Vihiga & Another
    [2018] eKLR
  • Isaac Gathungu Wanjohi & Another vs Attorney General & 6 Others
    [2012] eKLR
  • Kenya Bus Service Ltd & 2 Others vs The Attorney General & 2 Others
    (2005) eKLR
  • Republic vs Senior Registrar of Titles Ex-parte Brookside Court Limited
    (2012) eKLR
  • Priest -v- Secretary of State
    [1982] 81 LGR 193,198
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
Jurisdiction invoked
Articles 40 and 64 of the Constitution of Kenya; transferred to ELC Nyahururu as subject matter fell within its jurisdiction

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, "John Njoroge Maina v Attorney General & another [2019] KEELC 5025 (KLR)", Case Analysis (2019). Petition No 11 of 2018 (formerly Nairobi Pet 161/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5025/eng@2019-02-21

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