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ELCDismissedEnvironment and Land Constitutional Petition 1 of 2017· [2022] KEELC 14459 (KLR)

Joseph Langat & 2 others (Suing as the officials of 343 members of Koita Welfare Self-Help Group) v Kericho County Government & 4 others; Koita Community Welfare Group (Interested Party)

Environment and Land Court
27 October 2022
6,854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a community's bid for 1,200 acres, ruling that long occupation claims must go through adverse possession law, not constitutional petitions.

What this practically means

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Executive summary

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The Petitioners, officials of 343 members of Koita Welfare Self-Help Group, supported by the Koita Community Welfare Group (Interested Party), claimed to have occupied approximately 1200 acres described as LR No. 5468/3/R for over five decades as squatters, and sought a declaration of ownership, permanent injunction against Kericho County Government, demolition of structures on the show ground, and orders directing the Chief Land Registrar to survey, subdivide and issue them title deeds. They alleged the County forcefully entered the land and constructed an agricultural show ground without compulsory acquisition, violating articles 10, 20, 21, 23, 28, 40, 61, 63 and 68 of the Constitution. The County maintained it developed LR No. 631, public land earmarked for a show ground, not the suit land. The Chief Land Registrar and Attorney General argued the land was private, registered to James Finlay Kenya Limited, and that the relief sought was beyond the Registrar's powers. The 5th Respondent had earlier been struck out by a ruling of 11 November 2021. Oundo J held that the suit land was private land, not community land, since community land requires registration of the community and of the land following adjudication, none of which was demonstrated. The claim of occupation exceeding twelve years was in substance one for adverse possession, governed by sections 7, 37 and 38 of the Limitation of Actions Act, and under the principle of constitutional avoidance the Petitioners could not bypass that statutory remedy by clothing the dispute as a constitutional petition. The Petition also failed the Anarita Karimi Njeru particularity standard. The Petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the suit land LR No. 5468/3/R is community land

Holding

No - the land is private land registered to James Finlay Kenya Limited as lessee; Petitioners failed to show any adjudication or registration declaring it community land

Reasoning

The court examined article 63 of the Constitution and section 2 of the Community Land Act, holding that community land tenure requires registration of the community and of the land following adjudication. The undisputed position was that LR No. 5468/3 was registered to James Finlay Kenya Limited as lessee, hence private land, and the Petitioners produced no registrable document proving community ownership of LR No. 5468/3/R.

p. 10
02

Whether the Petitioners' claim can be brought as a constitutional petition

Holding

No - the claim is in substance one for adverse possession and must be brought under the Limitation of Actions Act; constitutional avoidance applies

Reasoning

Applying the principle of constitutional avoidance from Communication Commission of Kenya v Royal Media Services and related authorities, the court held that where legislation provides a clear remedy and procedure, a litigant cannot found a cause of action directly on the Constitution. The Petitioners' claim of occupation for over five decades was in substance an adverse possession claim governed by sections 7, 37 and 38 of the Limitation of Actions Act.

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Whether the Petition pleaded constitutional violations with particularity

Holding

No - the Petition merely cited articles without particularising violations, contrary to Anarita Karimi Njeru principles

Reasoning

The court noted the requirement that a petitioner identify the specific constitutional provisions violated and provide particulars of the violations and of the respondents' infringing conduct. The Petitioners only cited articles 10, 20, 21, 23, 28, 40, 61, 63 and 68 without demonstrating specific infringements, leaving the Petition vague and unsustainable.

p. 8

Legal principles established

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  • Where a statute provides a remedy and procedure for a grievance, a litigant must pursue that remedy rather than invoke the Constitution (constitutional avoidance)
  • A claim to land by occupation exceeding 12 years is adverse possession and must be pursued under sections 37 and 38 of the Limitation of Actions Act, not by constitutional petition
  • Community land vests only upon registration of a community and registration of the land following adjudication under the Community Land Act and Land Registration Act

Court orders

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  1. 1.Dismissal of the Petition dated 27 February 2017 and amended on 26 November 2020
  2. 2.Costs of the Petition to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 21, 22, 23, 258, 28, 40, 47(1), 61, 62(1), 62(2), 63, 63(2), 68, 159(2)(d)
  • Land ActSections 37, 107(1), 110(1), 112, 134
  • Community Land ActSections 2, 7
  • Land Registration ActSections 8, 26
  • Limitation of Actions ActSections 7, 37, 38
  • Evidence ActSection 107(1)
  • Civil Procedure RulesOrder 37 rule 7
  • Environment Court Act(cited in title of matter)

Cases cited (15)

  • Eliud Njoroge Gachiri v Stephen Kamau Nganga
    [2018] eKLR

    Trespass/encroachment (relied on by Petitioners)

  • Kakuta Maimai Hamsi v Peris Pesi Tobiko & 2 others
    [2013] eKLR

    Article 159(2)(d) not a panacea to cure litigation defaults

  • Nelson Kazungu Chai & 9 others v Pwani University College (Malindi)
    [2017] eKLR

    Property rights cannot be acquired other than as prescribed by law

  • Ann Wanjiru Gichuru & 7 others v Board of Management Mbegi Primary School & 2 others
    [2020] eKLR

    Exhaustion of statutory mechanisms before constitutional litigation

  • Anarita Karimi Njeru v The Republic
    [1979] 1 KLR

    Particularity required in pleading constitutional violations

  • Joseph C. Kiptoo & another v Kericho Water and Sewerage Company
    [2016] eKLR

    State liability for acts of agents - no evidence adduced

  • Mwagandi v Mtana Lewa
    [2014] eKLR

    Definition of adverse possession

  • Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    (2014) eKLR

    Principle of constitutional avoidance

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

    Cannot found cause of action directly on Constitution where legislation exists

  • Bandari Investment Company Limited v National Police Service & others
    [2021] eKLR

    Constitutional petition not best avenue where civil remedy exists

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

    Not trivialising constitutional jurisdiction where adequate alternative forum exists

  • Harrikissoon v Attorney General
    [1980] AC 265

    Constitutional redress not a general substitute for normal proceedings

  • Godfrey Paul Okutoyi & others v Habil Olaka & another
    (2018) eKLR

    Statutory rights are not fundamental rights under the Bill of Rights

  • Bernard Murage v Fine Serve Africa Ltd & others
    (2015) eKLR

    Statutory remedies should be pursued first where they exist

  • Josphat Langat & 2 others (Suing as the officials of 343 Members of Koita Welfare Self Help Group) v Kericho County Government & 4 others
    [2021] eKLR

    Prior ruling striking out the 5th Respondent from proceedings

Jurisdiction invoked
Articles 10, 20, 21, 23, 28, 40, 61, 63 and 68 of the Constitution of Kenya; Articles 22 and 258 (standing)

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, "Joseph Langat & 2 others (Suing as the officials of 343 members of Koita Welfare Self-Help Group) v Kericho County Government & 4 others; Koita Community Welfare Group (Interested Party)", Case Analysis (2022). Environment and Land Constitutional Petition 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14459/eng@2022-10-27

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