Mutua v Makarai & 4 others
The bottom line
#A Kenyan court cancelled an unlawfully issued land title and gave a 30-year squatter ownership of the plot plus Kshs. 3.5 million.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a constitutional petition
The Petition met the Anarita Karimi Njeru standard of reasonable precision and particularity
Applying Mumo Matemu and Anarita Karimi Njeru, the court held the Petitioner pleaded the violations with sufficient precision, identifying the provisions breached and the manner of breach, satisfying the threshold for a constitutional petition.
Petitioner's status and entitlement as squatter
The Petitioner was an undisputed squatter, listed as No. 000170 with House No. 340, entitled to the 2-acre allocation
The charge sheet confirmed his occupation since 1989; two squatter lists and the Land Registrar's letter of 11th June 2019 confirmed his settlement, development, graves of his family on Plot 590, and recommended subdivision in his favour. The State failed to produce the beneficiary list despite a court order.
Impeachment of the 1st Respondent's title
The title issued to the 1st Respondent was unlawful, unprotected under Article 40(6) and Section 26(1)(b) of the Land Registration Act, and was quashed
The 1st Respondent was never a squatter or farmer at Ziwani, never responded to the Petition despite service, and the State officials failed to justify the allocation. The process was opaque and violated Articles 40 and 47; the title's roots were undocumented and thus liable to cancellation.
Adverse possession and legitimate expectation
The Petitioner acquired prescriptive rights by adverse possession exceeding twelve years and a legitimate expectation from continuous occupation since 1989
The court held the continuous and uninterrupted occupation of private land for over thirty years created prescriptive rights and a legitimate expectation to be settled on the land, which State officials frustrated by allocating the plot to a non-squatter.
Fair administrative action
The allocation process violated Article 47 for lack of public participation, records and hearing of the Petitioner
The Ministry of Lands produced no documents on the allocation process, held no board meetings or public participation, and condemned the Petitioner without hearing him, rendering the process secretive and opaque.
Alternative remedy
The existence of an alternative remedy does not bar a constitutional petition where the remedies sought are efficacious
Relying on Martin Lemayian Mokoosio, the court held the dispute was constitutional in nature because the title flowed from processes initiated by State officers that violated constitutional provisions, so a normal suit was inappropriate.
Legal principles established
#- Constitutional violations must be pleaded with a reasonable degree of precision (Anarita Karimi Njeru standard)
- Where the State enters appearance but fails to file responses despite court orders, unchallenged evidence may be acted upon and orders granted
- A title acquired illegally or without due process whose roots are not documented is not protected and may be impeached and cancelled by the Court
- Costs follow the event; the successful party is entitled to general costs
Court orders
#- 1.Judgment entered that the Petition dated 25th February, 2021 is meritorious and allowed
- 2.Declaration that the Petitioner is a beneficiary as a squatter of the former Gicheha farm entitled to settlement on the Ziwani Phase 1 Scheme Taita Taveta
- 3.Declaration that the Petitioner acquired prescriptive rights on Plot 590/Ziwani Phase 1 Scheme under the Limitation of Actions Cap 22 through over thirty years of open, continuous and uninterrupted occupation
- 4.Declaration that the Petitioner is the rightful owner of Plot No. 590 Ziwani Phase 1 Scheme Taita Taveta
- 5.Declaration that the removal and omission of the Petitioner from the list of beneficiaries for Plot No. 590/Ziwani Phase 1 was illegal, invalid and unconstitutional
- 6.Order of certiorari quashing the Title Deed for Plot No. 590/Ziwani Phase 1 Scheme dated 9th August, 2016
- 7.Order of mandamus compelling the 2nd Respondent to cancel the registration of Plot No. 590 in the name of the 1st Respondent
- 8.Order of mandamus compelling the 2nd Respondent to register the Petitioner as absolute proprietor of Plot No. 590 and issue him a title deed
- 9.Permanent injunction restraining the 1st Respondent, her servants or agents from trespassing on, entering, farming or interfering with the Petitioner's occupation of Plot No. 590
- 10.General damages of Kenya Shillings 3,500,000.00 for damage to reputation, mental anguish and psychological suffering
- 11.Costs of the suit awarded to the Petitioner
- Jurisdiction invoked
- Articles 22(1), 23 and 165(3)(d) and 5 as read with Article 162(2)(b) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Makarai & 4 others", Case Analysis (2023). Environment & Land Petition 11 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15750/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.