Mulama & 3 others v National Land Commission & 2 others; County Government of Kakamega (Interested Party)
The bottom line
#The Environment and Land Court struck out a landowners' constitutional petition, ruling they should have challenged the revocation of their titles through ordinary statutory channels instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the threshold of a constitutional petition
It did not; the real dispute was the validity of the petitioners' titles, resolvable in ordinary statutory forums, so the petition offended constitutional avoidance and was struck out
The court found the claims under Articles 40 and 47 inextricably intertwined with the validity of the petitioners' titles. There were ample statutory avenues - an ordinary suit for declarations and review under Section 7 of the Fair Administrative Action Act - so constitutional litigation was unnecessary and the court lacked jurisdiction as a constitutional court.
Whether the petitioners' rights under Articles 40(3) and 47(1) were violated
Not determined; the court declined jurisdiction, holding the claims should be pursued through statutory avenues
The court held that even the Article 47 claim was intertwined with title validity, and that Section 7 of the Fair Administrative Action Act provides review for aggrieved persons without need of a constitutional petition. No valid reason was given why an ordinary suit was not filed.
Legal principles established
#- Allegations which can be claimed and proven away from the constitutional court ought not to be brought to the constitutional court; a petition in violation of constitutional avoidance is incompetent
- Where a fundamental right is regulated by legislation, such legislation becomes the primary means for giving effect to the constitutional right
- Article 40(1) protection does not extend to property found to have been unlawfully acquired
Court orders
#- 1.The petition is struck out
- 2.No order as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulama & 3 others v National Land Commission & 2 others; County Government of Kakamega (Interested Party)", Case Analysis (2022). Environment & Land Petition 5 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13794/eng@2022-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.