Mareka & another v National Land Commission & 2 others (Environment & Land Petition 8 of 2021) [2022] KEELC 3541 (KLR)
The bottom line
#The court ruled that land acquired for a road in 2006 stayed public forever, so the landowners' titles gave them no right to compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit properties were compulsorily acquired by the Respondents in 2017
No - the land formed part of a road reserve compulsorily acquired in 2006 (Gazette Notice No 6320) and was already public land
The court found Gazette Notice No 6320 of August 11, 2006 evidencing acquisition of the mother titles LR 21801/141, LR 21801/142 and LR 10426. Once acquired for a public purpose the land remained public land and could not be re-acquired; the 2017 intended acquisition was unnecessary and a waste of public funds. The registrar's entries on the Petitioners' titles were of no legal consequence.
Whether the Petitioners' right to property under Article 40 was violated
No - entitlement to compensation under Article 40(3) requires a bona fide interest, which cannot rest on title over a public road reserve
Sanctity of title does not protect land whose root is tainted; a road reserve is public land under Article 62(h). A title holder must be willing to show the root of title is clean. Since the suit properties lay on a road reserve acquired in 2006, the Petitioners had no compensable proprietary interest and their Article 40 right was not violated.
Whether the Petitioners' right to fair administrative action under Article 47 was violated
Yes - the Respondents changed the awards without hearing the Petitioners or giving reasons
The court found no evidence the Petitioners were told why the awards were reduced or that their views were sought. However, since there was no prayer for relief on this violation, the court made no orders on it. The adequacy of the awards was also unproved as the Petitioners produced no valuation.
Whether the claim could be proved by affidavit evidence rather than plaint and viva voce evidence
Yes - a claimant may prove a claim by affidavit or any other satisfactory manner
The 3rd Respondent argued that ownership disputes require viva voce evidence. The court disagreed, holding that a claimant may prove their claim by viva voce evidence upon filing a plaint or by way of affidavit, or by any other manner the court deems satisfactory.
Legal principles established
#- Once land is compulsorily acquired for a public purpose it remains public land and is not available for alienation; failure to note the acquisition in the register does not negate the acquisition
- A certificate of title attracts constitutional protection only where the root of title is clean; issuance by the Ministry of Lands alone is insufficient
- A road reserve is an overriding interest that need not be noted in the land register
Court orders
#- 1.The petition is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya (property rights petition); Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mareka & another v National Land Commission & 2 others (Environment & Land Petition 8 of 2021) [2022] KEELC 3541 (KLR)", Case Analysis (2022). Petition dated June 22, 2021 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3541/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.