Kericho Mwalimu Enterprises Limited v National Land Commission & 3 others (Constitutional Petition 2 of 2019) [2023] KEELC 410 (KLR)
The bottom line
#A Kenyan landowner lost its case against Kericho County because it offered allegations, not evidence, proving its claims in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner proved violation of its right to property under Article 40
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.
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.
Whether the Respondents breached the lease contract and violated Articles 27, 47, 48 and 50
No. No fault or liability of the Respondents was established; the Petitioner failed to discharge the evidentiary burden.
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.
What remedy applies if the State deprives a person of land
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).
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.
Legal principles established
#- 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
#- 1.The Petition dated 20th March 2019 is dismissed
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.