Awori v Attorney General & another (Constitutional Petition E001 of 2021) [2022] KEELC 2560 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's challenge to the National Land Commission's revocation of his Kisumu title, finding it unlawfully acquired.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is barred by res judicata
Yes; the issues of ownership and alleged violation of Articles 40, 48 and 50 were determined by Justice Kibunja in ELC Petition No. 6 of 2013 between the same parties.
Applying section 7 of the Civil Procedure Act and the conditions in Bernard Mugo Ndegwa v James Githae, the court found concurrence of jurisdiction, identical subject matter and substantially the same parties. The substratum of both petitions was the legality of the Petitioner's title, already conclusively determined. The Petitioner's remedy for the newly traced documents was an application for review of the prior judgment, not a fresh petition.
Whether the 2nd Respondent had power to revoke the Petitioner's title outside the five-year period under the National Land Commission Act
Yes; the revocation was effected after completion of the review process in accordance with section 14 of the Act and due process.
The Commission acted on a complaint lodged on May 6, 2016, issued public notices, heard affected parties, and found the allocation to be an illegal allocation of public utility land reserved for government housing. The court held the review was completed in accordance with the procedure in section 14, and relied on authority confirming the Commission's power to review privately held titles originally carved from public land.
Whether the Petition is merited on the alleged violations of Articles 10, 27 and 40
No; the Petitioner failed to demonstrate with precision how his rights were violated and could not prove lawful acquisition on a balance of probabilities.
Relying on Anarita Karimi Njeru v Republic, a party alleging constitutional violations must set out with reasonable precision the provisions infringed and the manner of infringement. Article 40(6) excludes property found to have been unlawfully acquired. The Petitioner's claim that documents were missing was unproven, and the underlying legality of his title had already been determined against him.
Legal principles established
#- A petition barred by res judicata cannot be maintained where the issues, parties and subject matter were previously determined by a court of concurrent jurisdiction
- The National Land Commission may revoke a title to public land where it follows the review procedure in section 14 of the National Land Commission Act, even after the five-year review period, where the review process commenced within that framework
- Constitutional property rights under Article 40 do not extend to property found to have been unlawfully acquired
Court orders
#- 1.The Petition is dismissed
- 2.Costs to the 1st Respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the constitutionality of the revocation of allocation of land under Article 40 of the Constitution and the National Land Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awori v Attorney General & another (Constitutional Petition E001 of 2021) [2022] KEELC 2560 (KLR)", Case Analysis (2022). Kisumu ELC Petition No. 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2560/eng@2022-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.