Joshua Kathawe & 150 others v Cabinet Secretary Ministry of Lands & 4 others; National Land Commission (Interested Party) [2022] KEELC 2281 (KLR)
The bottom line
#The court refused to stop evictions on disputed Meru land because the residents had no title documents or proof of violated rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners were entitled to conservatory orders
No. They failed to demonstrate a prima facie case or any recorded adjudication rights and hold no title superior to the respondents' certificate of title
The petitioners produced only a notice of an adjudication section and an unauthenticated map, with no evidence of rights recorded under the Land Adjudication Act. They did not plead fraud or illegality against the respondents' titles issued under the Land Registration Act. Their alleged developments are quantifiable and compensable in damages, and the land is a protected military area, so the balance of convenience and public interest favour the respondents.
Whether the petition met the constitutional petition threshold
The court found the petition did not indicate the constitutional rights or freedoms said to be denied, infringed or threatened, nor particulars of injury
Applying Rules 10 and 11 of the Mutunga Rules, a petition must disclose the constitutional provisions violated and the nature of the injury. The court found the petition before it did not specify the rights threatened nor particulars of injury, undermining the petitioners' application for conservatory relief, though the full petition was left for hearing.
Effect of the respondents' certificate of title over land reserved for the Armed Forces
The respondents hold valid title (IR 213242, L.R 27098) issued following setting apart under the Trust Land Act, protected under the Land Registration Act, the Land Act and Article 40
The land was gazetted in 1977 for the Armed Forces under the Trust Land Act, setting apart completed under sections 8, 9 and 69, surveyed in 2003 and titled. The petitioners did not sue the issuer of the titles and did not plead fraud, illegality, mistake or misrepresentation to impeach the title.
Whether the petitioners had rights from the alleged adjudication process
No evidence of recorded and ascertained rights under the Land Adjudication Act; no material of an eviction notice or complaint to the National Land Commission
The petitioners could not show a demarcation record under section 13, an adjudication register under section 23, a demarcation map under section 24 or a published notice of objections. No notice of eviction under sections 152A-152G of the Land Act or complaint to the National Land Commission was evidenced.
Legal principles established
#- A certificate of title is prima facie proof of ownership and can only be challenged on proof of fraud, illegality, mistake or misrepresentation
- A petitioner seeking conservatory orders must demonstrate the substantive petition is hinged on a claim that a right in the Bill of Rights has been denied, violated, infringed or threatened
- A party seeking conservatory orders must show a prima facie case with likelihood of success and real danger of prejudice from the violation or threatened violation
- An alleged threatened violation that is remote, not real or imminent, will not attract the court's remedial attention
Court orders
#- 1.The application dated 25.4.2021 is dismissed with no orders as to costs
- 2.Parties to comply with Order 11 and list the matter for hearing within 45 days from the date of the ruling
- Jurisdiction invoked
- Article 165(2)(b) of the Constitution; Articles 21, 22 and 23
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kathawe & 150 others v Cabinet Secretary Ministry of Lands & 4 others; National Land Commission (Interested Party) [2022] KEELC 2281 (KLR)", Case Analysis (2022). Petition dated 28.4.2021 (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2281/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.