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ELCStruck OutEnvironment & Land Petition 3 of 2020· [2022] KEELC 14874 (KLR)

Lekan Developers Limited v Cabinet Secretary Ministry of Lands & Physical Planning & 4 others; Wangui & 2 others (Interested Parties) (Suing for themselves and on behalf of Kiangombe Squatters Settlement Scheme)

Environment and Land Court
17 November 2022
6,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a landowner's constitutional petition because it lacked precise particulars and involved factual disputes needing a full trial.

What this practically means

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Executive summary

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Lekan Developers Limited, the registered owner of LR No. 29746 (IR No. 175337) Thika Municipality, petitioned the Environment and Land Court at Thika after the Deputy County Commissioner Thika West, by letter dated 30/6/2020, declared the parcel reserved for a public school (Kiangombe Village Plot No. TKA/04/032A) and warned the Petitioner against interference; the Petitioner alleged its perimeter wall was demolished and sought declarations of unconstitutionality, ownership, and a permanent injunction. The Respondents and the Interested Parties (Kiangombe Squatters Settlement Scheme) countered that the land was public land planned under approved PDP No. TKA/04/03/2A (Plan No. 365) for the Scheme, that the 1992 allotment letter to the Petitioner's vendors had been revoked, and that the Petitioner's title was irregularly acquired. The court framed three issues: whether the Petition met the constitutional threshold, whether the Petitioner proved its case, and what orders should issue. Applying Anarita Karimi Njeru and Mumo Matemu, the court found the Petitioner had not particularised most of the constitutional breaches pleaded. It further identified weighty factual disputes - the identity of the parcels, the revocation of the allotment letter and PDP, and notice to the parties - which could not be resolved on affidavit evidence and belonged in an ordinary suit with viva voce evidence. The Petition was struck out with no orders as to costs.

Key legal issues

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01

Whether the Petition met the constitutional threshold (Anarita Karimi Njeru)

Holding

The Petitioner cited numerous Articles but did not expound on how the rights under those provisions were breached or by whom; the particulars of breach were not disclosed

Reasoning

The court applied Anarita Karimi Njeru as affirmed in Mumo Matemu, holding that precision in pleading constitutional violations is required. Although the Petitioner listed Articles 2, 3, 22, 23, 27, 28, 29, 35, 40, 50, 258 and 259, it did not give particulars of how each was infringed and by whom, save for the general Article 40 complaint.

p. 11
02

Whether ownership and land-identity disputes can be resolved in a constitutional petition on affidavit evidence

Holding

No - the disputes over whether the 1992 allotment was revoked, whether the PDP was validly re-planned, and whether LR 29746 is the same as Plot TKA/04/03/2A require viva voce evidence tested by cross-examination

Reasoning

The court identified multiple contested factual questions: identity of the unsurveyed industrial plot with LR 29746, size discrepancies, revocation of the 1992 allotment letter, existence and revocation of the PDP, and notice to the parties. These are weighty issues unsuitable for affidavit evidence and belong in an ordinary suit.

p. 11
03

Protection of property rights under Article 40 and Section 26 of the Land Registration Act

Holding

Title protection is prima facie but not absolute; it does not extend to property unlawfully acquired

Reasoning

The court recited Article 40 and Section 26 LRA on indefeasibility, but noted the protection is not absolute where the propriety of the title is in question, citing Article 40(6) which excludes unlawfully acquired property from constitutional protection.

p. 10

Legal principles established

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  • A party seeking redress on a constitutional matter must set out with a reasonable degree of precision the complaint, the provision infringed and the manner of infringement
  • Indefeasibility of title is not absolute; Article 40(6) does not protect unlawfully acquired property
  • Weighty disputed factual issues, including title and land identity, cannot adequately be determined on affidavit evidence in a constitutional petition and should be tried in an ordinary suit

Court orders

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  1. 1.The Petition be and is hereby struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya 2010 read with Section 26 of the Land Registration Act; exclusive jurisdiction of the Environment and Land Court

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, "Lekan Developers Limited v Cabinet Secretary Ministry of Lands & Physical Planning & 4 others; Wangui & 2 others (Interested Parties) (Suing for themselves and on behalf of Kiangombe Squatters Settlement Scheme)", Case Analysis (2022). Environment & Land Petition 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14874/eng@2022-11-17

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