Basil Riticos v Attorney General & 7 others [2020] KEELC 3972 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Basil Criticos' constitutional petition, ruling that expired leaseholds automatically revert to the County Government and that overlapping suits waste court time.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus should issue compelling NLC to renew the expired lease
The prayer was overtaken by events as the County Government of Taita Taveta approved the renewal on 1st April 2018 and notified the NLC on 17th April 2019.
The court noted the major developments since filing: the County Government deliberated on and approved the lease renewal and wrote to the National Land Commission confirming it had no objection. With approval already communicated to the NLC, the grievance underlying the mandamus had been resolved and no order was necessary.
Whether the Petitioner's 39,524 acres should be declared available for settlement of the landless
Refused as the same issue is pending in Constitutional Petition No. 258 of 2011; re-litigating it is an abuse of process.
The court found the identical subject matter is the subject of Constitutional Petition No. 258 of 2011 (Hon. Basil Criticos v The Attorney General and 12 others), which had neither been concluded nor withdrawn. Pursuing the same issues in a separate petition therefore amounted to an abuse of court process.
Whether eviction of squatters could be ordered in the constitutional petition
Refused; the Petitioner must follow the eviction process under the Land Act, as squatters' rights are also protected in law.
There was no evidence of squatters on the suit property, only conflicting accounts about when occupation began. Prior court orders concerned other properties. The court held that the Land Act contains provisions on how squatters should be evicted, and bypassing them via a constitutional petition would infringe the squatters' legally protected rights.
Whether the TJRC could be compelled to provide information
No; the TJRC stood dissolved three months after submitting its report to the President under Section 52(1) of the TJRC Act, 2008.
TJRC was joined only on 22nd July 2013, after it had submitted its report to the President on 21st May 2013. Section 52(1) of the Truth, Justice and Reconciliation Act of 2008 provides that the Commission stands dissolved three months after submission of its report, so no orders could issue against a non-existent entity.
Whether the vesting of the suit property in the 8th Respondent should be nullified
Refused; there was no vesting order, only unsubstantiated press reports, and on expiry of a lease land automatically vests in the County Government.
The court found no order vesting the land in any person existed; the Petitioner relied on press reports. The law is that upon expiry of a lease the land automatically vests in the County Government or Government as applicable. In any event the County Government had approved the extension of the lease, mooting the prayer.
Whether the 7th Respondent breached Article 47 of the Constitution
No breach found; the extension was approved and communicated to the NLC and there was no evidence of a refusal to extend.
The County Government of Taita Taveta had already approved extension of the lease and the approval was communicated to the National Land Commission. Without evidence that the NLC refused to extend the lease, there was no factual basis for a declaration of a violation of the right to fair administrative action under Article 47.
Legal principles established
#- Where a lease has expired, the land automatically vests in the County Government or the Government, whichever is applicable.
- Litigating the same issues in different petitions is an abuse of the court process.
- Claims for destruction of property founded on disputed facts should be pursued in an ordinary suit with expert evidence, not a constitutional petition.
Court orders
#- 1.The Petitioner's petition is dismissed
- 2.Costs of the petition are awarded to the 5th and 8th Respondents
- Jurisdiction invoked
- Articles 10, 20, 21, 22, 23, 27, 28, 40, 47, 64, 67, 159, 258 & 259 of the Constitution of Kenya, 2010 (petition transferred to the Environment and Land Court on 2nd May 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Basil Riticos v Attorney General & 7 others [2020] KEELC 3972 (KLR)", Case Analysis (2020). Petition No. 576 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3972/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.