Samuel Chemobo Bundotich & 2 others v Ministry of Lands, Housing & Urban Development (Formerly of Lands and Settlement) & 2 others [2020] KEELC 2286 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kshs.60 million property rights claim because the landowners' title was superimposed on land the government had lawfully acquired in 1975.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners' rights to property under Article 40 were violated
No. The suit property had been lawfully acquired by the government in 1975 under Gazette Notices 942 and 943 and was never available for allocation, so the petitioners had no protectable proprietary right.
The 1st respondent's deponent explained the 1975 acquisition and the subdivision history of the mother title LR 7741/21, showing the suit property was superimposed on LR 7741/135, which the government had fully acquired and whose title was cancelled in 1976. These averments were unchallenged by the petitioners, who adduced no evidence of lawful acquisition.
Whether the petitioners proved a violation with the precision required
No. The petitioners failed to demonstrate specifically and precisely what violations they suffered, contrary to the Anarita Karimi Njeru standard.
The court applied the requirement that a petitioner alleging constitutional infringement must particularise the right infringed and the manner of infringement, and found the petitioners' allegations unsubstantiated both as to title and as to the pleaded breaches of fair hearing and administrative justice.
Whether the petitioners are entitled to the reliefs sought
No. Having failed to prove a lawful title or proprietary interest, the petition fails and no reliefs are available.
Since the constitutional protection of property excludes unlawfully acquired property under Article 40(6), the petitioners could not claim compensation or damages for deprivation of property they never lawfully held, nor were they entitled to declarations of procedural breach.
Legal principles established
#- Article 40 protection does not extend to property unlawfully acquired; a claimant must first prove a lawful proprietary interest before alleging a constitutional violation
- Public lands acquired through compulsory acquisition form overriding interests that qualify the indefeasibility of a registered proprietor's title
- A party alleging constitutional infringement must plead and prove the violation with precision, and the burden of proving the violation rests on the petitioner
Court orders
#- 1.The petition is dismissed
- 2.Costs awarded to the 1st and 2nd respondents
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 40, 47, 48 and 50 of the Constitution of Kenya 2010 (petition alleging violation of the Bill of Rights); the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chemobo Bundotich & 2 others v Ministry of Lands, Housing & Urban Development (Formerly of Lands and Settlement) & 2 others [2020] KEELC 2286 (KLR)", Case Analysis (2020). ELC Petition No. 1249 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2286/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.