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ELCStruck OutEnvironment & Land Petition 5 of 2021· [2022] KEELC 13794 (KLR)

Mulama & 3 others v National Land Commission & 2 others; County Government of Kakamega (Interested Party)

Environment and Land Court
25 October 2022
3,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The four petitioners challenged the revocation of title to Isukha/Lubao/425 and its seven subdivisions (Isukha/Lubao/2093-2099) effected through Gazette Notice No 11043 of November 10, 2017, pursuant to a determination by the National Land Commission directing the Chief Land Registrar to revoke the titles of the 1st petitioner and Mathias Masengo and reinstate the land to Masinde Muliro University of Science and Technology. The petitioners alleged the revocation was done without hearing them or the original proprietors, violating Articles 40(3) and 47(1) of the Constitution, and sought declarations of procedural irregularity, certiorari quashing the revocation decisions, reinstatement of the titles, declarations of ownership of the subdivisions, lifting of restrictions, and costs. The Commission, through Brian Ikol, maintained the parcel was public land reserved as Lubao Grazing Field and illegally allocated, following investigation by the County Land Management Board. The interested party, County Government of Kakamega, asserted the land remained public land held under Article 62(2) and that the petitioners were heard. The court framed two issues: whether the petition met the constitutional threshold and whether the reliefs should issue. Holding that the real dispute was the validity of the petitioners' titles, resolvable through ordinary suits and review under Section 7 of the Fair Administrative Action Act, the court found the petition offended the principle of constitutional avoidance and struck it out, making no order as to costs.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

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

Reasoning

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.

02

Whether the petitioners' rights under Articles 40(3) and 47(1) were violated

Holding

Not determined; the court declined jurisdiction, holding the claims should be pursued through statutory avenues

Reasoning

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

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  • 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

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  1. 1.The petition is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 40(1), 40(3), 40(6), 42, 47(1), 62(2), 69, 70, 162(2)(b)
  • Environment and Land Court ActSection 13
  • Fair Administrative Action ActSection 7
  • Government Lands Act (repealed)procedures for alienation

Cases cited (10)

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; without it proceedings come to an end

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated

  • Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service
    [2019] eKLR

    A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied

  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR

    ELC's wider jurisdiction over rights breaches related to environment and land

  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR

    A petition filed in violation of constitutional avoidance is incompetent

  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    [2016] eKLR

    Where adequate statutory avenues exist, parties should not trivialize constitutional litigation

  • Munawar Shuttle v County Government of Kilifi & 2 others
    [2018] eKLR

    Relied on by petitioners on Article 47 fair administrative action

  • Kenya Anti-Corruption Commission v Lima Limited & 2 others
    [2019] eKLR

    Relied on by interested party that transfer of public land was null and void ab initio

  • Norbix Kenya Limited v Attorney General
    [2014] eKLR

    Relied on by interested party on public land held for public utility

  • Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others
    [2021] eKLR

    Relied on by interested party on procedures for alienation of public land

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "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.