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ELCDismissedNot stated in the judgment (Constitutional Petition commenced 4 February 2020)· [2021] KEELC 1462 (KLR)

Ali Abdalla Mwakupigwa (Suing as Administrator of the Estate of the late Abdul Mwakupigwa Juba) v Attorney General & 3 others [2021] KEELC 1462 (KLR)

Environment and Land Court
14 October 2021
7,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The court confirmed it can hear historical land injustice claims in Kenya, but dismissed this one because the family produced no real evidence linking them to the land.

What this practically means

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Executive summary

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The petitioner, suing as administrator of the estate of the late Abdul Mwakupigwa Juba, filed a constitutional petition at the Environment and Land Court in Mombasa claiming that his late father was the lawful owner/occupant of 18 acres within LR No. 13448, part of 960 acres of Tiwi Trust Land, which was compulsorily acquired in 1974 for the Diani Complex tourist project, allegedly on a presidential directive, and from which the family was violently evicted in 1989 without compensation. He sought declarations that the acquisition, allocation, registration and subdivision to the 4th respondent were null and void, rectification of the register, vacant possession, restraining orders and damages. The respondents opposed, raising lack of jurisdiction over historical injustices, limitation, laches, lack of precision in pleading constitutional violations, and the 4th respondent's registered title. The court held that it has jurisdiction over historical land injustice claims alongside the National Land Commission, but declined to exercise further analysis because the petition failed on the facts. The court found that the petitioner produced no cogent, complete or legible evidence connecting the deceased or himself to the suit land: incomplete newspaper articles, criminal proceedings not traceable to the deceased, and no evidence that the land was trust land or how the 960 acres was allocated. The petition was also found to distort facts and to conceal previous related litigation, which amounted to an abuse of process. The petition was dismissed with costs on 14 October 2021.

Key legal issues

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01

Jurisdiction over historical land injustice claims

Holding

The ELC has jurisdiction to hear historical land injustice claims; the NLC has concurrent jurisdiction and the court may defer to it, but there is no bar to a constitutional petition

Reasoning

The court relied on the Court of Appeal decision in Chief Land Registrar v Nathan Tirop Koech and its own earlier decision in Kipsiwo Community Self Help Group, holding that neither the Constitution nor the NLC Act gives the NLC a monopoly over historical injustice claims. The NLC's mandate under Article 67(2)(e) is concurrent. The court however cautioned that parties take on the risks of adversarial litigation, including strict proof, when they elect the court over the NLC.

p. 5
02

Whether the petitioner proved his claim of ownership, occupation and unlawful eviction

Holding

No - the petitioner failed to adduce any cogent evidence connecting the deceased or himself to the suit land

Reasoning

The court examined each exhibit: incomplete and barely legible newspaper excerpts, a newspaper photo showing the family outside their hut, and criminal proceedings that could not be traced to the deceased and whose acquittal under Section 210 made no finding of any right over the land. There was no evidence that the land was trust land, no survey maps, and no evidence of how the 960 acres of Diani Complex was distributed. The petition also asserted that President Moi alienated the land in 1974, when the President was Jomo Kenyatta.

p. 6
03

Limitation, delay and abuse of process

Holding

The court declined to reach the legal points on limitation and jurisdiction because the petition failed on the facts

Reasoning

Having found the petition had no factual foundation, the court held there was no need to examine the technical legal arguments raised by the respondents, including limitation under Section 7 of the Limitation of Actions Act, the Anarita Karimi Njeru precision rule and abuse of process, since analysing them would be an exercise in futility and speculation.

p. 6

Legal principles established

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  • The Environment and Land Court is not divested of jurisdiction to hear claims founded on historical land injustices, whether or not the NLC is seised of the matter
  • Although vested with jurisdiction, a court may in appropriate circumstances defer jurisdiction to the National Land Commission or decline to exercise it
  • A litigant who invokes the court's jurisdiction bears the burden of presenting complete and legible evidence to prove his case on a balance of probabilities
  • Concealing the outcome of previous related litigation and filing successive suits amounts to an abuse of the court process

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 60, 63, 67, 67(2)(e), 67(3), 69, 71, 162(2)
  • Repealed Constitution of KenyaSections 75, 117
  • Trust Land Act (repealed), CAP 288Sections 13, 13(2)
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • National Land Commission ActSections 15, 15(1)
  • Land Registration ActSections 24(a), 26(1)
  • Limitation of Actions ActSection 7
  • Land ActGeneral
  • Civil Procedure ActGeneral
  • Penal CodeSections 95(1)(b), 253(b)
  • Criminal Procedure ActSection 210

Cases cited (22)

  • Kenya National Chamber of Commerce & Industry (Muranga Chapter) & 2 Others vs. Delmonte Kenya Limited & 3 Others
    (2020) eKLR
  • Safepak Limited vs. Henry Wambega & 11 Others
    (2019) eKLR
  • Kipsiwo Community Self Help Group vs. Attorney General and 6 others
    (2013) eKLR
  • David Gitau Njau and 9 Others vs. Attorney General
    (2013) eKLR
  • Wachira Weheire & Attorney General
    (2010)
  • Pius Kibet Tott vs. Uasin Gishu County Government & 9 Others
    (2018) eKLR
  • Dominic Aroyo Amolo vs. Attorney General
    HC Misc. 494 of 2003
  • Gerald Gichochi & 9 Others vs. Attorney General
    Petition No. 487 of 2012
  • James Joram Nyaga & Another vs. Attorney General & Another
    (2007) eKLR
  • Kenya National Highway Authority vs. Shalien Masood Mughal & 5 others
    (2017) eKLR
  • Niaz Mohammed Jan Mohammed vs. Commissioner of Lands & 4 others
    (1996) eKLR
  • Anarita Karimi Njeru v. Republic (No. 1)
    (1979) KLR 154
  • Mumo Matemo vs. Trust Society of Human Rights Alliance
    (2014) eKLR
  • Kagia Ole Kamoiro & 8 others vs. Agricultural Development Corporation & 3 others
    (2020) eKLR
  • Republic vs. Paul Kihara Kariuki, Attorney General & 3 others ex parte Law Society of Kenya
    (2020) eKLR
  • Commission for Human Rights and Justice vs. Land Settlement Board of Trustees & 5 others
    (2021) eKLR
  • Four Farms Limited vs Agricultural Finance Corporation
    (2014) eKLR
  • Baobab Beach Resort and Spa Limited vs Duncan Muriuki Kaguru & Another
    (2017) eKLR
  • Geoffrey Muthiga Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Wellington Nzioka Kioko vs Attorney General
    (2018) eKLR
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Henry Wambega & 733 others v Attorney General & 9 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Ali Abdalla Mwakupigwa (Suing as Administrator of the Estate of the late Abdul Mwakupigwa Juba) v Attorney General & 3 others [2021] KEELC 1462 (KLR)", Case Analysis (2021). Not stated in the judgment (Constitutional Petition commenced 4 February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1462/eng@2021-10-14

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