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ELCStruck OutELC Petition No. 19 of 2020· [2022] KEELC 1268 (KLR)

Ali Juma Mwakaneno & 71 others v Registrar of Titles, Mombasa & 7 others [2022] KEELC 1268 (KLR)

Environment and Land Court
23 February 2022
NMN.A. Matheka
2,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court struck out a community land petition because it lacked precise pleadings, evidence, and duplicated existing suits.

What this practically means

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Executive summary

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The petitioners, describing themselves as original indigenous residents of Kibokoni and Utange, petitioned the Environment and Land Court at Mombasa claiming that Plot No. 390/II/MN was their ancestral land occupied since time immemorial. They alleged that strangers began claiming ownership in November 2016, prompting evictions and arrests, and that the land had been fraudulently registered in favour of the 6th Respondent, Two 3rds Investment Company Limited, in concert with land registry officials. They sought declarations that they were entitled to be registered as owners, that the 6th Respondent's title was null and void, prohibitory orders freezing any dealings with the suit property, an injunction restraining eviction, and mandatory injunctions compelling state respondents to perform their constitutional mandates. The respondents opposed, arguing that the petition did not disclose the identities of the '70 others', lacked authority from the petitioners, failed to plead with precision the constitutional provisions violated, and that ownership disputes were already pending in Mombasa ELC No. 232 of 2014 and ELC No. 3 of 2015. Applying Anarita Karimi Njeru and Mumo Matemu, the court held the petition fell short of the required reasonable precision. Relying on Leonard Otieno v Airtel Kenya, it further held the petitioners discharged no evidentiary burden, and found the matter sub judice. The petition was struck out with costs to the respondents.

Key legal issues

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01

Precision in pleading constitutional violations

Holding

The petition failed the Anarita Karimi Njeru standard; although constitutional provisions were cited, the petitioner did not demonstrate how his rights were violated, infringed or threatened

Reasoning

The court relied on Anarita Karimi Njeru and Mumo Matemu, holding that a petitioner must precisely enumerate the constitutional provisions relied on, particularise the manner of violation, and support the claim with evidence. The petition cited provisions but gave no particulars, and no supporting affidavit was filed.

p. 3
02

Burden of proof in constitutional petitions

Holding

The petitioner bore, and failed to discharge, the burden of proving the alleged violations

Reasoning

Applying Leonard Otieno v Airtel Kenya, the court held that a litigant asserting constitutional violations bears the onus of proving them and that courts must not decide such claims on unsupported hypotheses. The petitioner adduced no evidence of the alleged evictions, arrests and interference with the suit land.

p. 3
03

Sub judice

Holding

The petition was sub judice given pending suits over ownership of the same land

Reasoning

The respondents pointed out that the petitioner had filed Mombasa ELC No. 232 of 2014 against the 3rd Respondent and that the 3rd Respondent had filed ELC No. 3 of 2015 against the petitioner, both seeking to determine ownership of the same suit parcel. The court found the petition sub judice on that basis.

p. 3

Legal principles established

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  • In constitutional litigation a party alleging violation of rights must plead with reasonable precision the provisions violated and the manner of violation
  • Decisions on violation of constitutional rights cannot be made in a factual vacuum; a litigant bears the burden of proving the violation with clear evidence

Court orders

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  1. 1.The petition is struck out with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 61
  • Civil Procedure RulesOrder 1 Rule 13 (1&2)

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, Bill of Rights enforcement jurisdiction of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ali Juma Mwakaneno & 71 others v Registrar of Titles, Mombasa & 7 others [2022] KEELC 1268 (KLR)", Case Analysis (2022). ELC Petition No. 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1268/eng@2022-02-23

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