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ELCPartially AllowedEnvironment and Land Constitutional Petition 7 of 2019 & Environment & Land Case 116 of 2019 (Consolidated)· [2022] KEELC 14827 (KLR)

Mutua & 5 others v County Government of Machakos & 12 others; Maluki & 3 others (Interested Parties)

Environment and Land Court
14 November 2022
4,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos upheld a family's title to 370 hectares, cancelled a fraudulent lease, and ruled Kenyans can demand information from county governments without conditions.

What this practically means

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Executive summary

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This consolidated first-instance judgment of the Environment and Land Court at Machakos (Ochieng J) determined a constitutional petition by John Kioko Mutua and Sarah Nzembi Mutua challenging a notification of intent to subdivide and change the user of LR No 29666 (formerly LR 13208/2), about 370.9 hectares in Mavoko, issued by the Director of Physical Planning, Machakos County on April 12, 2019, together with ELC 116 of 2019 in which the Interested Parties (as Plaintiffs) sought a declaration of ownership, a permanent injunction and damages for trespass against the Mutua family. The court framed four issues: infringement of the right to information, proprietorship of the suit land, entitlement to the Petition orders, and entitlement to the Plaint orders. It held that the 1st and 2nd Respondents infringed the Petitioners' Article 35 right of access to information and their right to fair administrative action by refusing to divulge the identities of the change-of-user applicants despite a written demand of May 1, 2019, following Katiba Institute, Nairobi Law Monthly and Trusted Society. On ownership, the court upheld the Petitioners' title, relying on the prior judgment of Angote J in Machakos ELC No 62 of 2018 (unappealed) and the Plaintiffs' failure to produce any title documents or deny forgery charges. The Petition was allowed with declarations, certiorari quashing the notification, prohibition and mandamus to rectify the register; compensation was refused for want of proof. The Plaintiffs' suit was dismissed, and costs of the consolidated suit were awarded to the Petitioners, borne by the Interested Parties/Plaintiffs.

Key legal issues

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01

Right of access to information under Article 35

Holding

The 1st and 2nd Respondents infringed the Petitioners' right to information and to fair administrative action by declining to divulge the identities of the applicants for change of user despite a written demand letter

Reasoning

The Petitioners' advocates wrote on May 1, 2019 seeking information. The Respondents' deponent admitted they could not release the information because ownership was unclear. The court, relying on Katiba Institute, Nairobi Law Monthly and Trusted Society, held that information held by the State is accessible on request without conditions, and that public entities owed a statutory and constitutional duty to divulge it.

02

Proprietorship of the suit land

Holding

The Petitioners' title was upheld; the Plaintiffs/Interested Parties, who produced no documents of title and did not deny forgery charges, failed on a balance of probability

Reasoning

Ownership had already been determined by Angote J in Machakos ELC No 62 of 2018 on February 15, 2019, with no appeal preferred. The Plaintiffs filed a notice of withdrawal and no answer to the Petition, and produced no title documents. The court held the burden was on the Plaintiffs to prove title and found the Lease of October 12, 2016 was procured by fraud.

p. 7
03

Whether ownership could be determined in a constitutional petition

Holding

The court rejected the 3rd and 4th Respondents' constitutional avoidance argument because ownership had already been determined in a civil suit

Reasoning

The Respondents argued ownership and trespass must be raised by civil suit and invoked constitutional avoidance. The court disagreed, noting the ownership question had already been litigated and determined in Machakos ELC Case No 62 of 2018, a civil case, and no appeal was preferred against that judgment.

p. 8

Legal principles established

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  • Once a citizen requests information held by the State, it must be availed without delay; Article 35 imposes no conditions on access
  • There is no prescribed format for seeking information; a written request suffices, and public entities owe a duty to divulge information when sought

Court orders

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  1. 1.Declaration that the notification of intent to subdivide and change user of LR No 29666 issued on 12 April 2019 violated the Petitioners' right to property
  2. 2.Declaration that the Petitioners are entitled to access information held by the County Government and Chief Land Registrar on the identities of persons who applied for subdivision and change of user
  3. 3.Declaration that the Petitioners and family members of James Kasyula Mutua, upon registration as proprietors of the Lease dated April 6, 2018, are the absolute and indefeasible owners of LR No 29666
  4. 4.Declaration that the Lease dated October 12, 2016 purportedly issued under the hand of ZY Mucheke was obtained by fraud and is unconstitutional, illegal, null and void
  5. 5.Declaration that the Notification of intent to subdivide and change user issued April 12, 2019 is unconstitutional, illegal, null and void
  6. 6.Order of certiorari quashing the Notice of Intent to subdivide and change user issued April 12, 2019
  7. 7.Order of prohibition restraining the 1st and 2nd Respondents from subdividing, changing user, alienating or dealing with LR No 29666 except with the Petitioners' consent
  8. 8.Order of mandamus compelling the Chief Land Registrar to rectify the land register by cancelling the registration of the Lease issued under the hand of ZY Mucheke
  9. 9.Costs of the Consolidated Suit awarded to the Petitioners to be borne by the Interested Parties/Plaintiffs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19, 20, 21, 24, 35, 40; Part 2 Paragraph 8 of the Fourth Schedule
  • Land Registration ActSections 12, 13, 14, 24, 25, 26
  • Physical Planning ActSections 4, 29, 30, 31, 32, 33, 41(3), 43, 44, 52
  • County Government ActSection 96 and Part XI
  • Evidence ActSections 109, 112
  • Access to Information Act
  • Fair Administrative Action Act

Cases cited (15)

  • Nairobi Law Monthly v Kenya Electricity Generating Company & 2 Others
    [2013] eKLR

    Access to information held by the State under Article 35

  • Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission
    [2016] eKLR

    Right of access to information

  • Anarita Karimi Njeru v Republic No 1
    [1979] 1 KLR 54

    Precision in pleading constitutional violations

  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil App 290/2012 [2013] eKLR

    Cited by Petitioners

  • Republic v Municipal Council of Mombasa Ex parte Hubert Seifert & Others
    [2017] eKLR

    Cited by 1st and 2nd Respondents

  • John Kabukuru Kibicho & Another v County Government of Nakuru & 2 Others

    Cited by 1st and 2nd Respondents

  • Farah Abdinor Ahmed v National Land Commission & 2 others
    [2014] eKLR

    Cited by 1st and 2nd Respondents

  • Republic v Chief Land Registrar & 2 Others; Ex parte Trojan Nominees Limited
    [2020] eKLR

    Cited by 1st and 2nd Respondents

  • Katiba Institute v President's Delivery Unit & 3 Others
    [2017] eKLR

    Article 35 information held by the State must be availed on request without delay, without conditions

  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000] eKLR

    Fraud must be specifically pleaded and strictly proved

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR

    Cited by 3rd and 4th Respondents

  • Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority
    [2016] eKLR

    Cited by 3rd and 4th Respondents

  • Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others
    Petition No 14, 14A, B & C of 2014

    Cited by 3rd and 4th Respondents

  • Kenya Agricultural and Livestock Research Organization (KALRO) v Edison Sonje Taura & 3 Others
    [2021] eKLR

    Cited by 3rd and 4th Respondents

  • Edward Karanja Chogo & 2 Others v County Government of Kakamega
    [2018] eKLR

    Cited by 3rd and 4th Respondents

Jurisdiction invoked
Articles 2, 3, 10, 19, 20, 21, 35 and 40 and Part 2 Paragraph 8 of the Fourth Schedule of the Constitution of Kenya

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, "Mutua & 5 others v County Government of Machakos & 12 others; Maluki & 3 others (Interested Parties)", Case Analysis (2022). Environment and Land Constitutional Petition 7 of 2019 & Environment & Land Case 116 of 2019 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14827/eng@2022-11-14

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