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ELCDismissedELC Petition No. 128 of 2016· [2022] KEELC 1158 (KLR)

Phillip Kipchirchir v Cabinet Secretary for Lands & 6 others [2022] KEELC 1158 (KLR)

Environment and Land Court
22 February 2022
NMN.A. Matheka
2,862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's constitutional petition because he pleaded his rights claims vaguely and produced no evidence to prove them.

What this practically means

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Executive summary

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The Petitioner, registered as leasehold owner of LR No. MN/I/6748 (C.R 21651) for 99 years from 1st August 1988, petitioned the Environment and Land Court at Mombasa seeking declarations that his title was valid, that the land was not un-alienated government land, that the creation of the Ziwa La Ng'ombe Settlement Scheme over the property, allotment of plots and issuance of titles thereon was unlawful and amounted to compulsory acquisition without compensation under Article 40, and compensation of Kshs. 136,400,000.00 per a valuation by Salem Valuers Limited, plus costs and interest. The Respondents opposed, contending that the land had been occupied by squatters for decades who were formally settled and issued titles by the President in 2013; that allocation of land and compensation fall within the mandate of the National Land Commission (7th Respondent) and not the 1st to 6th Respondents; and that the Petitioner never occupied the land nor proved how he obtained his title. The court applied the Anarita Karimi Njeru standard as reaffirmed in Mumo Matemu, holding that although the Petitioner pleaded constitutional provisions, he failed to plead with reasonable precision the manner of the alleged violations and adduced no evidence of them. Relying on Leonard Otieno v Airtel Kenya, the court further held that constitutional violations cannot be decided on unsupported hypotheses. The court also observed that the dispute over ownership of land ought to have been brought as a civil suit. The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Pleading standard in constitutional petitions

Holding

The petition failed the Anarita Karimi Njeru standard of reasonable precision

Reasoning

The court, relying on Anarita Karimi Njeru and Mumo Matemu, held that a petitioner must precisely enumerate the constitutional articles infringed, the manner of infringement and particularise the violations. Although the Petitioner cited constitutional provisions, he did not demonstrate to the required standard how his rights were violated, infringed or threatened by each Respondent.

p. 3
02

Burden and standard of proof

Holding

The Petitioner did not discharge the burden of proving the alleged violations on an evidentiary foundation

Reasoning

Applying Leonard Otieno v Airtel Kenya, the court held that allegations of constitutional violation must be propounded on an evidentiary foundation and cannot rest on unsupported hypotheses. The Petitioner adduced no evidence demonstrating the violations, while the Respondents adduced evidence of the settlement scheme and long occupation by over 2000 settlers issued titles in 2013.

p. 3
03

Appropriate forum and procedure

Holding

The dispute over ownership of the suit property ought to have been filed as a civil suit, not a constitutional petition

Reasoning

The court observed that the Petitioner's core complaint, that he is the registered owner of land being subdivided and settled upon by third parties, was essentially a private-law land ownership dispute. Such a claim concerning ownership of land did not belong in a constitutional petition.

p. 3

Legal principles established

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  • A party alleging violation of rights in constitutional litigation must plead with reasonable precision the provisions violated, the manner of violation and prove it by evidence
  • Decisions on violation of constitutional rights cannot be made in a factual vacuum; the litigant bears the burden of proof

Court orders

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  1. 1.The petition is dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40 and 47
  • Land Act2012

Cases cited (5)

  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
  • Dr. Rev. Timothy Njoya vs The Hon. Attorney General and Kenya Review Authority
    HC Constitutional and Human Rights Division Petition No. 479 of 2013
  • Leonard Otieno vs. Airtel Kenya Limited
    (2018)
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of fundamental rights (Articles 40 and 47) before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Phillip Kipchirchir v Cabinet Secretary for Lands & 6 others [2022] KEELC 1158 (KLR)", Case Analysis (2022). ELC Petition No. 128 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1158/eng@2022-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.