Joshua Munyenye & 490 others v Tom Omami & 11 others [2021] KEELC 3019 (KLR)
The bottom line
#The Environment and Land Court dismissed 491 buyers' claims because they had no legal title to the land and used the wrong type of case to claim it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners had a right to the suit land capable of being enforced in the constitutional petition
They did not; their seller (the 9th Respondent) never owned the land and the membership certificates issued to them conferred no title.
The Petitioners claimed to have purchased the suit land from the 9th Respondent, which held itself out as owner and issued them membership certificates pending titles. The court found the 9th Respondent never owned the land and could not pass title. The certificates were not certificates of title under Section 26 of the Land Registration Act, so the Petitioners had no ascertainable legal rights capable of constitutional protection under Article 40.
Whether a claim for possession/adverse possession can be brought by way of constitutional petition
No; the Petitioners should have filed an ordinary suit and, if dissatisfied with the eviction orders, sought to set them aside in the same cause.
The 3rd to 5th Respondents argued that ownership of land cannot be determined in a constitutional petition and relied on Gabriel Mutava v Kenya Airports Authority on trivializing constitutional jurisdiction where adequate alternative avenues exist. The court agreed that an ordinary suit was the proper avenue and that challenges to the magistrate's eviction orders should have been made in the same cause, which the Petitioners never did.
Whether the Respondents violated the Petitioners' constitutional rights (property, housing, fair administrative action)
No violation was demonstrated; the petition was dismissed.
Having found no enforceable proprietary rights and having held the petition to be the wrong procedural vehicle, the court concluded that the Petitioners failed to demonstrate violation of their rights by the Respondents and declined all the reliefs sought, awarding costs to the participating Respondents.
Legal principles established
#- A claim for adverse possession or for possession of land cannot be heard and determined as a constitutional petition; an ordinary suit is the proper avenue.
- Membership identification certificates issued by a self-help group are not certificates of title under Section 26 of the Land Registration Act and confer no registrable rights.
- A party cannot sustain a claim of violation of the constitutional right to property without an ascertainable legal right over the land in question.
- Court orders unchallenged in the suit in which they were issued remain lawful and enforceable and cannot be attacked collaterally in a fresh petition.
Court orders
#- 1.The orders sought in the petition dated 3/6/2011 were declined
- 2.The Petitioners to pay the costs of the 3rd, 4th and 5th Respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petitions for violation of fundamental rights (Articles 40 and 43 invoked); proceedings transferred into ELC Case No. 661 of 2012 from Petition No. 103 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Munyenye & 490 others v Tom Omami & 11 others [2021] KEELC 3019 (KLR)", Case Analysis (2021). ELC Case No. 661 of 2012 (Formerly Petition No. 103 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3019/eng@2021-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.