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ELCStruck OutPetition dated May 3, 2021· [2022] KEELC 3578 (KLR)

Ali v Chief Land Registrar & another (Petition E006 of 2021) [2022] KEELC 3578 (KLR)

Environment and Land Court
15 August 2022
MOM A Odeny
1,205 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's petition, holding that a refusal to release an original title deed belongs in an ordinary civil suit, not a constitutional petition.

What this practically means

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Executive summary

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The petitioner, Omar Ali, claimed to be the registered owner of Tezo/Roka Settlement Scheme/73 measuring approximately 12.4 acres in Kilifi County. He deponed that on May 28, 2018 he completed the discharge of charge and transfer from the Settlement Fund Trustees, was registered on November 4, 2019 and a title deed issued, but the respondents refused to release the original title deed to him, giving him only photocopies. He petitioned the Environment and Land Court at Malindi seeking a declaration that his rights under article 40 had been infringed, an order for issuance of the original title deed and a copy of the green card, general relief and costs. The parties agreed to determine the matter by written submissions. The petitioner relied on sections 24, 25 and 26 of the Land Registration Act on indefeasibility of title. The respondents argued the petition was improper and premature, contending that the dispute belonged to judicial review rather than a constitutional petition, and that no request for the original title had been made. The court, applying the constitutional avoidance principle (CNM v WMG; Communications Commission of Kenya v Royal Media Services), held that the petitioner had not demonstrated how his constitutional rights were infringed and that the relief sought could be obtained in an ordinary suit, since the documents were purely contractual between him and the Settlement Fund Trustees. The petition was struck out with each party bearing its own costs.

Key legal issues

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01

Whether the petition was the proper procedural vehicle for the dispute over issuance of an original title deed

Holding

The petition was improper; the dispute belongs to an ordinary civil suit

Reasoning

The court applied the constitutional avoidance principle from Communications Commission of Kenya v Royal Media Services, holding that where a case can be decided without reaching a constitutional issue, that course should be followed. The documents relied on were purely contractual between the petitioner and the Settlement Fund Trustees, showing allocation, payment receipts, discharge of charge and transfer; an ordinary suit could compel issuance of the original title deed upon proof of the case.

p. 4
02

Whether the petitioner demonstrated infringement of his rights under articles 27, 35 and 40

Holding

No infringement was demonstrated; the respondents' alleged refusal was not shown to amount to a constitutional violation

Reasoning

Though the petitioner cited articles 3, 20, 23, 27(2)(3), 40 and 47, he did not show how the respondents infringed his rights. The court reasoned that not all infractions amount to constitutional violations, and that possession of a photocopy of the title meant the petitioner could pursue an ordinary suit to compel issuance of the original.

p. 3

Legal principles established

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  • A court will not determine a constitutional issue when the matter may properly be decided on another basis (principle of constitutional avoidance)
  • Not every infraction amounts to a constitutional violation requiring a constitutional petition

Court orders

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  1. 1.The Petition is struck out as not proper before the court
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 27(2)(3)
  • Constitution of Kenya, 2010Article 35(b)
  • Constitution of Kenya, 2010Articles 3, 20, 23, 47
  • Land Registration Act, Act No. 3 of 2012Sections 24, 25 and 26
  • Civil Procedure RulesOrder 21(1)

Cases cited (6)

  • Kabogo Tharau v Joash Omwenga & another
    [2017] eKLR
  • Prisca Fikirini Mwenzani v Land Registrar Kilifi & Another
    [2020] eKLR
  • CNM v WMG
    [2018] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • S v Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
Jurisdiction invoked
Articles 3, 20, 23, 27(2)(3), 40 and 47 of the Constitution of Kenya, 2010 (invoked by the petitioner)

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, "Ali v Chief Land Registrar & another (Petition E006 of 2021) [2022] KEELC 3578 (KLR)", Case Analysis (2022). Petition dated May 3, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3578/eng@2022-08-15

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