Patrick M’kailanya v Annisieta Kaungu & 15 others [2022] KEELC 648 (KLR)
The bottom line
#Kenya's land officials broke the law by ignoring a valid land adjudication decision and issuing titles anyway, so the court invalidated those subdivisions.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a constitutional petition
The petition disclosed a constitutional question capable of determination
Applying Anarita Karimi Njeru and later authorities, the court found the petition disclosed parties, facts, the impugned acts and the rights (Articles 40 and 47) allegedly breached with sufficient precision, satisfying the pleading threshold for a constitutional petition.
Breach of right to fair administrative action and property
The 14th–16th respondents violated the petitioner's rights under Articles 47 and 40 by failing to implement the unappealed adjudication officer's decision and issuing titles in disregard of it
The 14th respondent's failure to implement Objection No. 1929 fell within 'administrative action' as defined in section 2 of the Fair Administrative Action Act, including refusal to act. The state respondents were served but stayed silent, so the burden of justification was never discharged, and titles issued in fragrant disregard of the decision were unconstitutional.
Justification by respondents
No justification was raised; the 14th–16th respondents opted to remain silent
Although served, the 14th, 15th and 16th respondents did not respond on the facts or law. Under sections 6(3) and 6(4) of the Fair Administrative Action Act, failure to furnish reasons permits the court to presume the action was taken without good reason; the 1st–13th respondents merely asserted ownership via green cards without addressing the adjudication decision.
Legal principles established
#- A petitioner in a constitutional petition must set out with a reasonable degree of precision the complaint and the manner in which the rights have been infringed
- Failure by an administrator to implement its own decision, including refusal to act, constitutes administrative action under the Fair Administrative Action Act, and once a petition is served the burden shifts to the state organs to justify the inaction
- Where an administrator fails to furnish reasons for its action or inaction, the court may presume the decision was taken without good reason
Court orders
#- 1.A declaration that the petitioner's rights for fair administrative action under Article 47 of the Constitution as read together with the Fair Administrative Action Act 2015 and the right to own land under Article 40 of the Constitution have been violated by the 14th–16th respondents
- 2.A declaration that any subdivisions, registration, and transfers arising out of Parcel No. 817 Antuamburi adjudication section in disregard of the land adjudication officer's decision in favour of the 1st–13th respondents were invalid, irregular, unprocedural and unconstitutional
- 3.A permanent injunction restraining the 1st–13th respondents, themselves, agents, families, employees or any other person acting at their behest from interfering with petitioner's Parcel No. 817 Antuamburi adjudication section or its subdivisions thereof
- 4.No order on costs
- Jurisdiction invoked
- Articles 40, 47, 20 and 21 of the Constitution; Fair Administrative Action Act, 2015; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick M’kailanya v Annisieta Kaungu & 15 others [2022] KEELC 648 (KLR)", Case Analysis (2022). Petition dated 10.2.2021 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/648/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.