Mutua & 5 others v County Government of Machakos & 12 others; Maluki & 3 others (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Right of access to information under Article 35
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
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.
Proprietorship of the suit land
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
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.
Whether ownership could be determined in a constitutional petition
The court rejected the 3rd and 4th Respondents' constitutional avoidance argument because ownership had already been determined in a civil suit
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.
Legal principles established
#- 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
#- 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.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.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.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.Declaration that the Notification of intent to subdivide and change user issued April 12, 2019 is unconstitutional, illegal, null and void
- 6.Order of certiorari quashing the Notice of Intent to subdivide and change user issued April 12, 2019
- 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.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.Costs of the Consolidated Suit awarded to the Petitioners to be borne by the Interested Parties/Plaintiffs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.