Philemon Morara Apiemi & another v Chief Land Registrar & 2 others [2021] KEELC 3379 (KLR)
The bottom line
#A Kenyan land buyer who bypassed the Land Registration Act's caution-removal process lost his constitutional petition and got no title or damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the replying affidavit of the 2nd Respondent was defective for want of signature
Affidavit duly signed and commissioned; not expunged
On perusal of the court file the judge found the replying affidavit sworn by Paul Tanui was signed and commissioned, so the objection under the Oaths and Statutory Declarations Act failed.
Whether failure to file a Memorandum of Appearance disqualifies the Respondents' documents
Technicality disregard - Article 159(2)(d)
The court held the objection was a procedural technicality inconsistent with the constitutional directive that justice be administered without undue regard to technicalities, and considered the Respondents' documents.
Whether the Petitioners' constitutional rights under Articles 40 and 47 were violated
No violation established; petition belongs in a civil suit
The court found unexplained gaps: a 12-year delay before initiating transfer, failure to seek removal of the caution under section 73 of the Land Registration Act, failure to seek reconstruction of the missing Green Card, and the vendor's absence from the proceedings, all pointing to private-law issues requiring evidence in a civil suit.
Whether general and exemplary damages were payable
Damages declined as not proved
The court noted the Petitioners waited 12 years after the Sale Agreement and beyond the contractual completion date before commencing registration, and adduced no proof of loss flowing from non-registration.
Legal principles established
#- A constitutional petitioner must plead the claim with precision, identifying the constitutional provisions violated
- Where a petition raises private-law disputes requiring adducing of evidence, the proper forum is a civil suit
Court orders
#- 1.Petition struck out as unmerited
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Articles 22, 23, 40, 47 and 64 of the Constitution of Kenya (petition alleging contravention of rights and fundamental freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philemon Morara Apiemi & another v Chief Land Registrar & 2 others [2021] KEELC 3379 (KLR)", Case Analysis (2021). Constitutional Petition No. 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3379/eng@2021-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.