Simon Natal Ntoitha v Sub-County Land Adjudication and Settlement Officer, Igembe (North) & 2 others [2022] KEELC 363 (KLR)
The bottom line
#A Kenyan court cancelled titles created when officials took a man's land for public use without notice or compensation, and ordered the original ruling implemented.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the constitutional pleading threshold
The petition met the threshold, having raised a specific constitutional question with facts, alleged breach, nature of injuries and specific reliefs.
The court applied the requirements of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 as explained in Mumo Matemu. The petitioner pleaded the facts, the Articles infringed (40 and 47), the injury suffered and the reliefs sought, enabling the respondents to respond and plead justification.
Whether the petitioner's rights to property and fair administrative action were violated
Yes. The land was taken and re-adjudicated to public institutions without notice, consultation, reasons, or just compensation, tantamount to compulsory acquisition in breach of Articles 40 and 47.
The respondents admitted no consultation occurred and did not produce the decision relocating the land; the map sheets produced were not authenticated. Applying Zinj Ltd, deprivation required notice, stated public purpose and just compensation. Absent a supplied decision, s.6 of the Fair Administrative Action Act raises a presumption there were no good reasons.
Whether the respondents were justified in failing to implement the A/R decision of 25.10.2016
No. The respondents were under constitutional and statutory duty to implement the lawful A/R decision; non-implementation without reasons violated the petitioner's legitimate expectation and fair administrative action rights.
An A/R objection decision under s.26 of the Land Adjudication Act is made to be acted upon. The respondents admitted the decision exists but gave no reasons for non-implementation, invoking the presumption in s.6 of the Fair Administrative Action Act and the Supreme Court's articulation of legitimate expectation in Communication Commission of Kenya.
Legal principles established
#- Administrative action flowing from statutes must meet the constitutional test of legality, reasonableness and procedural fairness.
- Under Article 47(1), natural justice comprises acting fairly as well as in a procedurally fair manner.
- A party alleging violation of a right must demonstrate it, after which the party benefitting from the limitation must justify the limitation.
- Compulsory acquisition requires notice to owners, a stated public purpose, and prompt payment in full or just compensation.
- Under section 6(4) of the Fair Administrative Action Act, authorities must not unfairly or without lawful excuse delay or fail to implement decisions upon which parties legitimately expect action.
Court orders
#- 1.Declaration that the proceedings and decision to relocate Parcel No. 2168 of Amwathi/Mutuati II A Adjudication Section, Igembe North, initially demarcated in map sheet no. 15/3 and relocated and demarcated in map sheet no. 10/16 and subdivided into parcels nos. 9616, 11431, 2163, 2720, 5568 for Mutuati law courts, social hall, police station, secondary school and open market was unlawful, unprocedural, null and void and unconstitutional.
- 2.Order of mandamus compelling the respondents to implement the A/R decision delivered on 25.10.2016 with respect to parcel no. 2168 Amwathi/Mutuati/IIA.
- 3.Declaration that any registration of subdivision regarding Parcel No. 2168 and subsequent titles issued contrary to the A/R objection decision of 25.10.2016 (Parcels No's 9616, 1143, 2703, 2720 and 5568) are invalid, irregular, unlawful and stand cancelled.
- 4.Order of mandamus directed at the chief land registrar and district land registrar in charge of Igembe North to recall any title deeds for cancellation and/or invalidation and to rectify and/or amend the Registry Index Map regarding Parcel No. 2168 or its subdivisions.
- 5.Costs to the petitioner.
- Jurisdiction invoked
- Article 23 of the Constitution (enforcement of Bill of Rights) read with Articles 40 and 47
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Imunya v Kibaara & 2 others[2023] KEELC 21762 (KLR)22 Nov 2023
- Remus Cyprian Banu Saimon Mutiri alias Remus Banu Muturi alias Remus Banu Muthuuri v Stephen Nturibi Itirikia[2023] KEELC 19866 (KLR)20 Sept 2023
- In the Matter of the Estate of Benjamin M'Murithi M'Muketha alias Benjamin Murithi (Deceased) v County Government of Meru & Another[2023] KEELC 660 (KLR)8 Feb 2023
- Suter v The District Land Adjudication & Settlement Officer & 4 others[2022] KEELC 15231 (KLR)6 Dec 2022
- Henry v District Adjudication & Settlement Officer Tigania East/West & 5 others; Mborothi & 4 others (Interested Parties)[2022] KEELC 13840 (KLR)26 Oct 2022
- Henry v District Adjudication & Settlement Officer Tigania East/West & 5 others; Mborothi & 4 others (Interested Parties)[2022] KEELC 13840 (KLR)26 Oct 2022
Cite this brief
#Cite this brief
Caselaw, "Simon Natal Ntoitha v Sub-County Land Adjudication and Settlement Officer, Igembe (North) & 2 others [2022] KEELC 363 (KLR)", Case Analysis (2022). Constitutional Petition No E02 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/363/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.