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ELCDismissedPetition dated 14th July 2015· [2021] KEELC 165 (KLR)

Aweso Mohamed Shali & 8 others v National Land Commission & 2 others [2021] KEELC 165 (KLR)

Environment and Land Court
20 December 2021
MOM.A. Odeny
2,831 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a families' claim that the Navy took their Manda Bay land because they could not prove they ever owned it.

What this practically means

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Executive summary

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The petitioners, claiming descent from forefathers settled at Magogoni area, Manda, Lamu County, petitioned in July 2015 alleging that their constitutional right to property under Article 40 was infringed when they were allegedly forcibly evicted in the early 1990s to make way for the Manda Bay Navy Base. They sought a declaration of infringement, an order compelling the National Land Commission to issue a resettlement and compensation policy, and general damages. The matter proceeded by viva voce evidence; the petitioners called one witness, and the 2nd and 3rd respondents two witnesses. PW1 testified that the family was forced out in 1992 without compensation, conceding she did not know the government had bought the land from Aboud Abdalla and had no list of uncompensated persons. The respondents proved that Kenya Navy purchased 486.54 Ha from registered owner Abdalla Rafrouf, took possession in 1992, obtained deed plan 210479 and a certificate of title, and in 1988 paid Kshs. 379,025 through the DC Lamu to squatters on a list that was never contested. The Registrar of Titles confirmed a clean transfer without overriding interests. The court applied Anarita Karimi Njeru on precision in pleading constitutional violations and held that one cannot be deprived of that over which one has no rights. The petitioners proved no ownership, no impropriety, and never sued Abdalla. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the petitioners' Article 40 right to property was infringed by the respondents' acquisition of the Manda Bay land

Holding

No infringement established; the suit land was lawfully purchased from the registered owner and transferred to the respondents, with no encumbrance or objection.

Reasoning

The respondents produced a certified title, deed plan, transfer documents and payment voucher showing purchase from Aboud Abdalla Rafrouf and compensation of squatters listed by the DC Lamu. The petitioners produced no ownership documents, did not contest the squatter list, did not sue the alleged grabber Abdalla, and failed to prove impropriety in the sale and transfer.

p. 5

Legal principles established

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  • A constitutional petitioner must demonstrate with precision the right alleged to be violated, the manner of violation and the relief sought
  • A person cannot claim deprivation of property under Article 40 without first proving rights over that property

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 62
  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Article 65
  • Land Registration ActSections 24, 25 and 26
  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • Anarita Karimi Njeru vs Republic
  • Trusted Society of Human Rights Alliance vs Attorney General and Others
    Petition No.229 of 2012
  • Veronica Njeri Waweru & 4 others v City Council of Nairobi & 2 others
    [2012] eKLR
  • Charles Karathe Kiarie & 2 Others –vs- Administrators of Estate of John Wallance Muthare (deceased) & 5 others
  • HENRY WAMBEGA & 733 OTHERS -vs- ATTORNEY GENERAL & 9 OTHERS
    [2020] eKLR
  • JOEL AMDANY & 90 OTHERS -vs- BARINGO COUNTY GOVERNMENT & 3 OTHERS
    [2021] eKLR
  • Federation of Women Lawyers (FIDA Kenya) & 4 others v the Attorney General & 2 others
    [2016] eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010 (constitutional petition on the right to property)

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, "Aweso Mohamed Shali & 8 others v National Land Commission & 2 others [2021] KEELC 165 (KLR)", Case Analysis (2021). Petition dated 14th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/165/eng@2021-12-20

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