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ELCAllowedPetition dated 3/6/2018 (Kitale ELC)· [2021] KEELC 2683 (KLR)
John Masinde Kanchenja v Land Adjudication Settlement Officer Trans-Nzoia County & 2 others; Jeremiah Marabu Miyoro (Interested Party) [2021] KEELC 2683 (KLR)
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·~16 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This Environment and Land Court petition at Kitale concerned Plot Number 182 Kanyarkwat Settlement Scheme (approximately 5 acres). The petitioner, in occupation since 1985, applied in 2012 for allocation after the earlier allottees (David Rono and Hannah Kirui) failed to comply with allotment conditions and Kirui's allotment was cancelled in 2012. The respondents confirmed his occupation, requisitioned a ground report and prepared to allocate the land to him, but in 2015 the interested party purported to purchase the land from Kirui and in 2016 obtained an allotment, later acquiring title on 21/3/2017. The petitioner petitioned in June 2018 for a declaration that he should have been given precedence and that the allocation should have been open and transparent. The interested party denied the claims, alleging abuse of process given Kitale ELC 89 of 2017, and asserted his own occupation since 2015 and lawful title. The court, which had earlier granted conservatory orders preserving the petitioner's possession, found that the respondents' actions created a legitimate expectation of allocation to the petitioner; that Kirui lacked capacity to sell after cancellation and was never produced or joined; and that reallocating land from a long-possessing applicant to a newcomer violated Articles 10, 27 and 47. The court held its constitutional jurisdiction was not barred by the registration of the land, since the challenge was to administrative action, and invoked Article 23(3) to craft appropriate relief. The petition succeeded: the allocation, sale agreement, allotment letter, registration and title were declared and cancelled as nullities, the petitioner was ordered registered as proprietor, permanent injunctions issued, damages of Kshs 200,000/- awarded against the respondents, with costs to the interested party only.
Key legal issues
#01
Whether the petitioner's constitutional rights were violated by the allocation of the suit land to the interested party
Holding
Yes - the allocation was irregular, unreasonable and violated Articles 10, 27 and 47
Reasoning
The petitioner occupied the land since 1985 and applied for allocation in 2012. The respondents cancelled Hannah Kirui's allotment and prepared a ground report in preparation for allocating to the petitioner, creating a legitimate expectation. The interested party purportedly purchased from Hannah in 2015, after her allocation had been cancelled, so she had no capacity to sell. Allocating to the interested party divested a long-possessing applicant in favour of a newcomer, contrary to equity, transparency and non-discrimination.
p. 3
02
Whether the court could cancel the interested party's title given registration
Holding
Yes - this is not a purely private title dispute but a constitutional challenge to administrative allocation
Reasoning
The court distinguished disputes over registered private land between private citizens from this case, where the land was unregistered when the dispute arose and the challenge targets the respondents' administrative decision to shunt aside the petitioner's application. Constitutional jurisdiction therefore lies to nullify the title procured through the irregular allocation.
p. 4
Legal principles established
#- Where a person in long possession has applied for allocation and the state agency's responses have created a legitimate expectation of allocation, reallocating the land to a newcomer not in possession is irregular and unconstitutional
- Under Article 23(3) of the Constitution the remedies available to a court in constitutional petitions are inexhaustible and the court may craft an appropriate remedy
Court orders
#- 1.A declaration that in allocating Plot Number 182 Kanyarkwat Settlement Scheme the 2nd and 3rd respondents should have given precedence to the petitioner by virtue of his actual and long possession and that the allocation should have been open, public and transparent
- 2.A declaration that the allocation to Jeremiah Marabu Miyoro was not conducted in an open equitable and transparent manner, violated Articles 10, 27 and 47, and the said allocation is cancelled
- 3.A declaration that the purported sale agreement dated 13/3/2015 is invalid and incapable of disposing of any interest in the suit land to Jeremiah Marabu Miyoro
- 4.A declaration that the purported letter of allotment dated 9/5/2016 and all consequential administrative documents in favour of the interested party are irregular, illegal and void
- 5.Cancellation of the registration of parcel No Trans Nzoia/Kanyarkwat/182 in the name of Jeremiah Marabu Miyoro as illegal, null and void
- 6.Cancellation of the title deed issued over parcel No Trans Nzoia/Kanyarkwat/182 on 21/3/2017 in the name of Jeremiah Marabu Miyoro
- 7.An order of permanent injunction restraining the respondents from allocating the parcel to any person other than the petitioner
- 8.An order that the petitioner shall be registered as the proprietor of the suit land forthwith
- 9.A permanent injunction restraining the interested party from interfering with the petitioner's quiet possession
- 10.Damages of Kshs 200,000/- payable by the respondents to the petitioner for violation of his constitutional rights
- 11.Costs of the petition to be borne by the interested party only
- Jurisdiction invoked
- Articles 22 and 23(3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Masinde Kanchenja v Land Adjudication Settlement Officer Trans-Nzoia County & 2 others; Jeremiah Marabu Miyoro (Interested Party) [2021] KEELC 2683 (KLR)", Case Analysis (2021). Petition dated 3/6/2018 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2683/eng@2021-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.