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ELCDismissedPetition dated 20th March 2019 (filed 21st March 2019), Environment and Land Court, Kericho· [2023] KEELC 410 (KLR)

Kericho Mwalimu Enterprises Limited v National Land Commission & 3 others (Constitutional Petition 2 of 2019) [2023] KEELC 410 (KLR)

Environment and Land Court
26 January 2022
5,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost its case against Kericho County because it offered allegations, not evidence, proving its claims in court.

What this practically means

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Executive summary

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Kericho Mwalimu Enterprises Limited petitioned the Environment and Land Court at Kericho claiming that the Respondents, principally the County Government of Kericho, violated its constitutional rights by issuing construction approvals to third parties who then encroached on land parcel L.R No. 631/1353, Kericho Municipality, held under a 99-year lease. The Petitioner sought declarations of violation of Articles 27, 28, 29, 40, 47, 48 and 50, an order of judicial review to quash the approvals, eviction of alleged illegal immigrants, general damages of Kshs 5,000,000 for breach of contract, compensation of Kshs 5,000,000 for rights violations, or alternatively Kshs 65,000,000 being market-rate compensation, and costs. The 2nd Respondent filed a preliminary objection and replying affidavit contending that no cause of action was disclosed, the encroachers were not joined, and it was the proprietor's own duty to protect its land from squatters. The 3rd and 4th Respondents filed no response. Only the Petitioner filed submissions. The court, M.C. Oundo J, distinguished the Supreme Court's Zinj Limited decision relied upon by counsel. Holding that the Petitioner proved registration and title but produced no documentary evidence that the Respondents issued the impugned approvals, titles or allotment letters, and noting the absence of any compulsory acquisition process under the Land Act, the court applied Sections 107-109 of the Evidence Act and found the burden of proof undischarged. It further held the alleged squatters could not be evicted without being accorded fair administrative action and a fair hearing. The Petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Petitioner proved violation of its right to property under Article 40

Holding

Not proved. Title was proved but no documentary evidence linked the Respondents to the encroachment or showed deprivation/acquisition within Article 40; the alleged third-party invasion is a matter for the owner, not a constitutional petition.

Reasoning

The court found the Petitioner a registered proprietor with a protected legal interest, but no evidence showed the Respondents issued approvals, titles or allotment letters, or that compulsory acquisition occurred. The encroachers were not joined and could not be evicted without due process. The claim remained mere allegation; squatter invasion should be pursued through other avenues, not a constitutional petition.

p. 9
02

Whether the Respondents breached the lease contract and violated Articles 27, 47, 48 and 50

Holding

No. No fault or liability of the Respondents was established; the Petitioner failed to discharge the evidentiary burden.

Reasoning

The court applied Sections 107-109 of the Evidence Act, holding that a party asserting facts on which relief depends must prove them. The Petitioner's own evidence confirmed it acquired and held title; there was no proof of denial of property rights, arbitrary deprivation, or denial of fair administrative action, hearing or access to justice attributable to the Respondents.

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03

What remedy applies if the State deprives a person of land

Holding

Only deprivation for a public purpose or public interest, in accordance with the Constitution and statute, with prompt payment in full of just compensation, following the Land Act procedure, satisfies Article 40(3).

Reasoning

The court set out, citing Patrick Musimba v National Land Commission, the compulsory acquisition procedure under Part VIII (Sections 107-133) of the Land Act 2012, from notice of intention to acquire through inquiry, award, payment and vesting, and held no such steps were evidenced here.

p. 8

Legal principles established

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  • A party alleging facts must prove them; whoever desires a court to give judgment on a legal right dependent on facts must prove those facts (Sections 107-109 Evidence Act)
  • Sanctity of title to land is assured and protected under Sections 24, 25 and 26 of the Land Registration Act
  • A claim that the State compulsorily acquired land fails absent proof of the statutory acquisition process under the Land Act

Court orders

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  1. 1.The Petition dated 20th March 2019 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 23(3)(f), 27, 28, 29(c) & (f), 40, 40(1)-(6), 47, 48, 50, 65, 159(2)(a) & (b), Chapter Five
  • Evidence ActSections 107, 108, 109
  • Land Registration ActSections 24, 25, 26
  • Land ActSections 107-133 (Part VIII), 108, 110, 111, 112, 113-119, 120-122
  • Land Acquisition Act (repealed)
  • Civil Procedure ActSection 27(1)
  • Companies Act

Cases cited (9)

  • Attorney General v Zinj Limited
    Petition 1 of 2020; [2021] KESC 23 (KLR) (Civ) (3 December 2021) (Judgment); [2021] eKLR
  • Multiple Hauliers East Africa Limited v Attorney General & 10 others
    Petition No. 88 of 2010
  • Mosisili v Editor Mirror Newspaper and Others
    Case No. CIV/T/275/2001
  • National Land Commission v Estate of Sisiwa Arap Malakwen & Another
    ELC Case No. 112 of 2016
  • Wilfred Juma Wasike & 11 Others v Ministry of Interior and Co-ordination & Another
    ELC Petition No. 2 of 2020
  • Keroche Industries Limited v Kenya Revenue Authority & 5 Others
  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
    ELC Case No. 31 of 2013
  • Republic v Senior Registrar of Titles Ex-parte Brookside Court Limited
    (2012) eKLR
  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR
Jurisdiction invoked
Articles 23, 27, 28, 29(c) & (f), 40, 47, 48 and 50 of the Constitution of Kenya, 2010 (petition for enforcement of Bill of Rights)

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, "Kericho Mwalimu Enterprises Limited v National Land Commission & 3 others (Constitutional Petition 2 of 2019) [2023] KEELC 410 (KLR)", Case Analysis (2022). Petition dated 20th March 2019 (filed 21st March 2019), Environment and Land Court, Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/410/eng@2023-01-26

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