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ELCPartially AllowedPetition (amended 17th October 2019), filed 23rd October 2015 (number not stated in judgment)· [2021] KEELC 1624 (KLR)

Presbyterian Foundation Limited v Principal Secretary Ministry of Interior & Co-ordination & 5 others [2021] KEELC 1624 (KLR)

Environment and Land Court
5 October 2021
OKOkong'o
5,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Nairobi's Environment and Land Court confirmed a registered landowner's title, ordered Al Aqsa Mosque to vacate occupied land, and warned that self-help never defeats registered title in Kenya.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of Nairobi/Block 61/639 in Kibera, petitioned the Environment and Land Court alleging that the 3rd Respondent (Al Aqsa Mosque) had without authority constructed a mosque and/or madrassa on its land, and sought declarations of violation of Articles 29(c), 32 and 40 of the Constitution, mandamus against the 1st Respondent, a mandatory injunction, and eviction. The 2nd and 3rd Respondents contended the title was fraudulently acquired over public utility land set aside for the Nubian community, citing the Ndung'u Report, and objected to jurisdiction on the basis that the dispute was a boundary dispute under Section 18(2) of the Land Registration Act. The court found it had jurisdiction, holding the dispute was over ownership rather than boundaries. It held the Petitioner was the lawful registered owner, its certificate of lease having been issued under the Registered Land Act, and that allegations of fraud had not been strictly proved; the Ndung'u Report extract produced was incomplete, did not refer to the suit property, and contained no finding of illegality, only a recommendation for investigation. The court found the 3rd Respondent had trespassed, rejecting self-help even against allegedly irregular title. Only the Article 40(1) claim succeeded; the Article 29(c) and 32 claims failed for want of evidence. The court granted a declaration of violation, ordered the 3rd Respondent to vacate and remove structures by 5th April 2022, restrained further construction, allowed eviction on default, and awarded costs against the 3rd Respondent only. Mandamus against the 1st Respondent was refused as the dispute was private in nature. The court also deprecated the practice of litigating ordinary land disputes as constitutional petitions.

Key legal issues

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01

Jurisdiction - whether the dispute is a boundary dispute excluded under Section 18(2) of the Land Registration Act

Holding

The court has jurisdiction; the dispute is over ownership, not boundaries

Reasoning

The 2nd and 3rd Respondents argued the dispute concerned unfixed boundaries. The court held the longstanding dispute is over ownership of the suit property, with the boundary question only relevant incidentally to encroachment. Jurisdiction may be raised at any time, and on the merits the court was satisfied the matter was one of title, not boundary demarcation.

p. 4
02

Whether the Petitioner is the lawful proprietor of the suit property

Holding

Yes; the Petitioner is the lawful registered owner

Reasoning

The Petitioner was registered on 27th January 1995 and produced a lease instrument and certificate of lease. Under sections 27, 28 and 143 of the Registered Land Act, title vests absolutely and can only be defeated by proven fraud or mistake. The burden shifted to the 2nd and 3rd Respondents, whose evidence - an incomplete extract of the Ndung'u Report not referring to the suit property - failed to prove fraud to the required heightened standard.

p. 5
03

Whether the 3rd Respondent trespassed

Holding

Yes; the 3rd Respondent entered, built structures on and occupied the suit property without lawful cause

Reasoning

The Petitioner proved ownership and possession by title. The 3rd Respondent did not deny constructing structures but claimed it was on public land, without leading evidence. The court held that even if the Petitioner's title was irregular, self-help was impermissible; the State could recover land only through due process under Articles 40(2)(a), 40(6) and 47(1).

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Whether constitutional rights under Articles 29(c), 32 and 40 were violated

Holding

Only Article 40(1) was violated, and only by the 3rd Respondent

Reasoning

The Article 29(c) claim failed for want of evidence linking violence to the Respondents; the Article 32 claim failed as there was no interference with worship. The 3rd Respondent's entry, construction and occupation of the Petitioner's property without permission infringed the property right under Article 40(1).

p. 6
05

Abuse of constitutional petition process

Holding

The court deprecated the practice of clothing ordinary civil land disputes as constitutional petitions

Reasoning

The court noted the Petitioner had abandoned a civil suit in favour of a constitutional petition and criticised the trend of bringing all disputes as constitutional petitions merely by alleging a constitutional flavour, observing that nearly all disputes have some constitutional dimension but need not be brought as petitions.

p. 3

Legal principles established

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  • Title to land can only be impeached where it was acquired through mistake, fraud or illegality, and fraud must be strictly proved
  • Even if land is believed to be illegally acquired, a private party may not forcefully seize it; the State must use due process to recover it
  • Title to land carries with it legal possession, sufficient for trespass even without actual possession

Court orders

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  1. 1.Declaration that the fundamental rights of the Petitioner under Article 40 of the Constitution have been violated by the 3rd Respondent
  2. 2.The 3rd Respondent shall vacate and hand over possession of the portion of Nairobi/Block 61/639 it occupies and remove all structures it has put up thereon
  3. 3.The 3rd Respondent shall vacate and hand over possession on or before 5th April, 2022
  4. 4.From the date of judgment until handing over possession, the 3rd Respondent shall not put up or construct any other or further permanent structures on the said portion
  5. 5.In default of vacating or removing structures, the Petitioner may apply for an order for forceful eviction of the 3rd Respondent without prejudice to other rights
  6. 6.The Petitioner shall have the costs of the petition to be paid by the 3rd Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(4), 29(c), 32, 40(1)-(6), 47(1), 65
  • Land Registration ActSection 18(2)
  • Registered Land Act, Chapter 300 Laws of Kenya (repealed)Sections 27, 28, 30, 143(1) and (2)
  • Trespass Act, Chapter 294 Laws of KenyaSection 3(1) and (2)
  • Evidence Act, Chapter 80 Laws of KenyaSection 107

Cases cited (12)

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Central Kenya Ltd. v Trust Bank Limited & 4 others
    [1996] eKLR
  • Insurance Company of East Africa Ltd. v The Attorney General & Others
    [2001] eKLR
  • Jared Benson Kangwana v Kenya Agricultural Research Institute
    [2014] eKLR
  • York Worldwide Holdings Limited v Kenya Forest Service & another
    ELC Petition No. 48 of 2017
  • Azzuri Limited v Pink Properties Limited
    [2018] eKLR
  • Esther Rita Mwelu Kyendo & Another v Kazungu Ngari
    [2016] eKLR
  • Railal Gordhanbhai Patel v Lalji Makanji
    [1957] E.A 314
  • Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 E.A KLR 269
  • Kampala Bottlers Ltd. v Damanico (UG) Ltd.
    [1990-1994] E.A 141
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Evelyn College of Design Ltd v Director of Children's Department & another
    [2013] eKLR
Jurisdiction invoked
Constitutional petition alleging violation of Articles 29(c), 32 and 40 of the Constitution; court's jurisdiction over land disputes (Environment and Land Court)

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, "Presbyterian Foundation Limited v Principal Secretary Ministry of Interior & Co-ordination & 5 others [2021] KEELC 1624 (KLR)", Case Analysis (2021). Petition (amended 17th October 2019), filed 23rd October 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1624/eng@2021-10-05

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