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ELCPartially AllowedConstitutional Petition (Amended Petition dated 23rd March 2021)· [2022] KEELC 2995 (KLR)

James & 14 others; Mombasa County Government & another (Respondent) (Environment & Land Case 193 of 2016) [2022] KEELC 2995 (KLR)

Environment and Land Court
16 June 2022
17,963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~72 min to read original · ~4 min brief

The bottom line

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A Mombasa court protected school operators and businesses from eviction but stopped short of confirming anyone's ownership of the disputed Kongowea land.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Mombasa, delivered by L. L. Naikuni, J on 16th June 2022, determined an Amended Constitutional Petition filed in 2014 by sixteen Petitioners - small business operators, a school operator and community members occupying part of Plot No. 143/2 Section One Mainland North at Kongowea. They sought declarations that the allocation of the open portion of the plot to Saidia Twahir Hatimy and its sub-division and transfer to the Affected and Interested Parties was illegal and void, rectification of the register, declarations of peaceful occupation, and conservatory orders against eviction, claiming title by adverse possession and legitimate expectation arising from business permits issued by the 1st Respondent. The Respondents and Interested Parties, registered proprietors of the sub-divisions since 2005, countered that the land was always private, that the Petitioners were trespassers, and that business permits confer no proprietary interest. Framing four issues, the Court held the Petition met the Anarita Karimi Njeru pleading threshold; that neither side conclusively proved ownership, since the registered proprietors filed no Cross Petition to plead and prove their root of title despite the challenge to it; that adverse possession and permit-based claims both fail in law; and that conservatory orders were merited on the Munya principles. The Petition was allowed to the extent of a conservatory order preserving the suit land and barring eviction except through Section 152E of the Land Act; the ownership and rectification prayers were not granted. Each party was ordered to bear its own costs, the matter being one of great public interest.

Key legal issues

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01

Whether the Amended Petition met the constitutional pleading threshold

Holding

The Petition met the threshold of reasonable precision under the Anarita Karimi Njeru standard

Reasoning

The Court applied the standard that constitutional violations must be pleaded with a reasonable degree of precision, as adopted in Mumo Matemu v Trusted Society of Human Rights Alliance drawing on Anarita Karimi Njeru v Republic. It found the Petitioners had articulated the specific provisions breached (Articles 10, 27, 28, 40, 47 and 53) and the manner of breach with sufficient particularity, and therefore held the Petition properly before the Court.

p. 17
02

Whether the Affected Parties and Interested Parties proved absolute ownership of the suit land

Holding

No party conclusively proved absolute ownership; the registered proprietors failed to demonstrate the legality of their acquisition because they did not file a Cross Petition or otherwise properly plead and prove the root of title

Reasoning

The Court accepted that certificates of title enjoy prima facie indefeasibility under Sections 25 and 26 of the Land Registration Act, but held that where a root of title is under challenge, the registered proprietor must go beyond the title document and prove legality of acquisition. The Respondents and Interested Parties mounted only defences without filing Cross Petitions, so their ownership claim remained unpleaded and unproven, and the Petitioners' challenges were unrebutted.

p. 24
03

Whether the Petitioners acquired title by adverse possession or through business permits

Holding

The Petitioners did not acquire title; business permits confer no proprietary interest and the adverse possession claim failed for want of proof and procedural compliance

Reasoning

The Court held that occupation for the prescriptive period was not proved, no court order conferred such title, and the claim did not comply with Order 37 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. Relying on Veronica Njeri Waweru and Amos Gikonyo Tununga, it held that single business permits and licences from the 1st Respondent do not ipso facto confer ownership or proprietary rights over the premises.

p. 25
04

Whether conservatory orders should issue

Holding

Conservatory orders were granted; the Petitioners established an arguable prima facie case, likelihood of prejudice, and public interest favouring preservation of the status quo

Reasoning

Applying the settled principles from Gatirau Peter Munya v Dickson Mwenda Kithinji and related authorities, the Court found the Petitioners had demonstrated an arguable prima facie case with likelihood of success, that denial would prejudice them through threatened eviction, that the Petition's substratum would be rendered nugatory, and that public interest, including the presence of a school on the land, supported maintaining the status quo pending further orders.

p. 28

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality of the acquisition
  • A single business permit or licence issued by a county authority does not confer any proprietary interest or ownership in the land on which the business operates
  • Courts do not grant relief that has not been pleaded; parties are bound by their own pleadings, and a Respondent or Interested Party seeking affirmative relief in a constitutional petition must file a Cross Petition under Rule 15(3) of the Mutunga Rules

Court orders

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  1. 1.The Amended Petition be and is hereby allowed whereby a conservatory order restraining the 1st and 2nd Respondents, the Affected Parties and the 2nd, 5th and 6th Interested Parties from interfering, entering upon, alienating, disposing, dealing in any way whatsoever with the land known as sub-division No. 13642, 13643, 13641, 13640, 13638, 13636 (part of the Plot of Land originally known as Plot No. 143/2) of Section One Mainland North
  2. 2.There should be no eviction of the Petitioners and their property unless one obtained by this Court pursuant to the Provisions of Section 152E of the Land Act No. 6 of 2012
  3. 3.Each party to bear its own costs
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)

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, "James & 14 others; Mombasa County Government & another (Respondent) (Environment & Land Case 193 of 2016) [2022] KEELC 2995 (KLR)", Case Analysis (2022). Constitutional Petition (Amended Petition dated 23rd March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2995/eng@2022-06-16

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