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ELCDismissedEnvironment & Land Petition 1 of 2021· [2022] KEELC 14894 (KLR)

Mbau & 10 others v Kenya Railways Corporation; National Land Commission (Interested Party)

Environment and Land Court
22 September 2022
ABA K Bor
4,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that land ownership disputes must go through ordinary suits, not constitutional petitions, when no rights violation is shown.

What this practically means

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Executive summary

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Eleven petitioners, residents of Nanyuki Town, petitioned the Environment and Land Court against Kenya Railways Corporation, alleging that in June and July 2020 the Respondent's agents entered their parcels of land, marked their buildings for demolition and fenced off the properties to block access as the Respondent moved to revive the Nairobi-Nanyuki Railway. The Petitioners, registered proprietors holding titles issued under the repealed Registered Land Act, sought declarations that their Article 40 property rights, fair administrative action rights under Article 47 and fair hearing rights under Article 50 had been violated, a permanent injunction, and general damages of Kshs. 21 million. The Respondent contended the titles were irregularly and fraudulently acquired over railway reserve land, that Article 40 is not absolute, and that it was entitled to reclaim its land, even invoking self-help. The National Land Commission, joined as interested party, did not participate; the 9th Petitioner withdrew her claim. The court, applying the Court of Appeal's decision in Eaton Towers Kenya, held that not every land claim raises a constitutional question. Determining whether the Suit Properties fell within railway land and whether the titles were lawfully acquired would require a mini trial on survey evidence, appropriate only in an ordinary suit. The Petitioners also failed to show they were barred from other avenues of redress. The petition was dismissed with each party bearing its own costs, leaving the ownership dispute to be litigated afresh in an ordinary suit.

Key legal issues

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01

Whether the petition raised a constitutional question justifying the constitutional petition route

Holding

No - the dispute over ownership of the Suit Properties is essentially a land ownership dispute requiring evidentiary trial, not a constitutional claim

Reasoning

The court held that not all land claims raise constitutional questions. The Respondent challenged the process by which titles were acquired, requiring scrutiny of maps, survey plans and evidence of the alienation process. Such an inquiry is a matter for an ordinary suit, not a constitutional petition. The Petitioners also failed to show they were barred from other avenues of redress.

p. 8
02

Whether the court could determine the legality of the Petitioners' titles within the petition

Holding

No - it would require a mini trial unsuitable for constitutional petition proceedings

Reasoning

The court noted the titles were acquired at different times through different processes and that the Respondent challenged the acquisition process. Scrutinising the maps and survey plans to determine title legality would amount to a mini trial within the petition, which was impractical; the parties must tender evidence at a trial in an ordinary suit.

p. 8
03

Whether the parcel numbering under the repealed Registered Land Act suggested the railway land survey post-dated the Suit Properties

Holding

The court observed that the Respondent's parcel number (Block 8/1080) being higher than the Petitioners' (609-699) suggested the railway land was surveyed after the Suit Properties

Reasoning

Under Section 18(4) of the repealed Registered Land Act, parcel numbers in a registration block are consecutive. The Respondent's higher parcel number implied its survey came after the Petitioners', though the court could not tell from the amended RIM whether the Suit Properties formed part of railway land before allocation.

p. 8

Legal principles established

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  • Not every land claim should be brought as a constitutional petition; matters capable of resolution without recourse to the Constitution should be resolved in ordinary suits
  • A party invoking a constitutional petition must demonstrate that the respondent barred it from using other available avenues of redress

Court orders

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  1. 1.The court declines to grant the orders sought in the petition dated 6/7/2020
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 40, 42, 47, 50, 60, 70, 162(2)(b)
  • Kenya Railways Corporation ActSection 3
  • Land Registration ActSections 25, 26
  • Fair Administrative Actions Actnot specified
  • Registered Land Act (repealed)Section 18(4)
  • Civil Procedure Actnot specified
  • Land Acquisition Act (repealed)not specified

Cases cited (11)

  • Evlyne College of Design Limited v Director of Children's Department and Another
    [2013] eKLR

    Even where land is allegedly illegally acquired, the State must use due process to recover it

  • Harjot Singh Dhanjay v Attorney General and Kenya Railways Corporation
    [2020] eKLR

    Entering land and fencing it to block access violates Articles 40 and 60 and fair administrative action even where land was illegally acquired

  • Attorney General v Zinj Limited
    (Petition 1 of 2020) [2021] KESC 23 (KLR)

    Government may only deprive property through compulsory acquisition under Article 40(3); damages awarded for infringement

  • David Moranga Oyugi v County Government of Kisii & 4 Others
    2022 eKLR

    Award of Kshs. 5 million for forcible entry and construction on a plot infringing Articles 40, 47, 48 and 50

  • Henry Muthee Kathurima v Commissioner of Lands & Another
    (2015) eKLR

    A title acquired irregularly is defeasible

  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    (2015) eKLR

    Possession of a lease is not enough; the process of acquisition is material

  • Teresia Wangari Mbugua v Jane Njeri Nduati & Another
    (2020) eKLR

    When ownership is questioned, the owner must show the root of ownership

  • Githunguri Dairy Farmers Co-operative Society Limited v Attorney General & 2 others
    (2016) eKLR

    Article 40 is not absolute; the Constitution provides clawbacks

  • Susan Waithera Kariuki and 4 Others v The Town Clerk, Nairobi City Council & 3 Others
    (2013) eKLR

    Where public interest conflicts with private interest, public interest must prevail

  • Margaret Njambi Kamau v John Mwatha Kamau & Another
    (2019) eKLR

    Occupation of land does not automatically establish a prima facie case

  • Eaton Towers Kenya v Kasingá & 5 Others
    (Civil Appeal 49 of 2016) [2022] KECA 861 (KLR)

    A constitutional petition is only appropriate where other avenues of redress are barred; matters should be resolved without recourse to the Constitution where possible

Jurisdiction invoked
Articles 23, 40, 42, 70 and 162(2)(b) of the Constitution

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, "Mbau & 10 others v Kenya Railways Corporation; National Land Commission (Interested Party)", Case Analysis (2022). Environment & Land Petition 1 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14894/eng@2022-09-22

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