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ELCPartially AllowedEnvironment & Land Petition 11 of 2021· [2023] KEELC 15750 (KLR)

Mutua v Makarai & 4 others

Environment and Land Court of Kenya
13 February 2023
9,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, Dominic Kioko Mutua, petitioned the Environment and Land Court at Mombasa claiming he was a squatter on the former Sir Ramson's/Gicheha Farm at Ziwani, Taita Taveta, settled on Plot 590 of the Ziwani Phase 1 Scheme since 1989, and was listed as squatter No. 000170 with House No. 340 in a scheme under which the Gicheha farm gifted 2,000 acres to squatters through the Ministry of Lands. He was nonetheless omitted from the beneficiaries' list and the plot was registered to the 1st Respondent, a Chumvini resident who was never a squatter. He sought declarations of beneficiary status, prescriptive rights and ownership, certiorari to quash the 1st Respondent's title, mandamus compelling cancellation and fresh registration in his favour, a permanent injunction, general damages and costs. None of the Respondents filed replies despite service and court-granted extensions; the Ministry of Lands also failed to produce the beneficiaries' list despite a court order. The 4th Respondent (ODPP) participated only on the criminal charges, which the trial court dismissed. The court, applying Anarita Karimi Njeru and Mumo Matemu, found the Petition properly pleaded; held the Petitioner's occupation since 1989 created prescriptive rights by adverse possession and a legitimate expectation; found the allocation process violated Articles 40 and 47 for opacity and absence of public participation; and held the 1st Respondent's title, being unlawfully acquired and undocumented in its roots, was unprotected and liable to be quashed. All reliefs were granted, with general damages fixed at Kshs. 3,500,000.00, plus costs to the Petitioner.

Key legal issues

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01

Threshold of a constitutional petition

Holding

The Petition met the Anarita Karimi Njeru standard of reasonable precision and particularity

Reasoning

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.

02

Petitioner's status and entitlement as squatter

Holding

The Petitioner was an undisputed squatter, listed as No. 000170 with House No. 340, entitled to the 2-acre allocation

Reasoning

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.

p. 13
03

Impeachment of the 1st Respondent's title

Holding

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

Reasoning

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.

p. 9
04

Adverse possession and legitimate expectation

Holding

The Petitioner acquired prescriptive rights by adverse possession exceeding twelve years and a legitimate expectation from continuous occupation since 1989

Reasoning

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.

p. 8
05

Fair administrative action

Holding

The allocation process violated Article 47 for lack of public participation, records and hearing of the Petitioner

Reasoning

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.

p. 15
06

Alternative remedy

Holding

The existence of an alternative remedy does not bar a constitutional petition where the remedies sought are efficacious

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Judgment entered that the Petition dated 25th February, 2021 is meritorious and allowed
  2. 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. 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. 4.Declaration that the Petitioner is the rightful owner of Plot No. 590 Ziwani Phase 1 Scheme Taita Taveta
  5. 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. 6.Order of certiorari quashing the Title Deed for Plot No. 590/Ziwani Phase 1 Scheme dated 9th August, 2016
  7. 7.Order of mandamus compelling the 2nd Respondent to cancel the registration of Plot No. 590 in the name of the 1st Respondent
  8. 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. 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. 10.General damages of Kenya Shillings 3,500,000.00 for damage to reputation, mental anguish and psychological suffering
  11. 11.Costs of the suit awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2, 10, 19, 20, 21, 22, 23, 24, 25(c), 26, 27, 28, 29, 31, 35, 39, 40(1), (3), (6), 43, 45, 47, 48, 50, 53, 60, 64, 73, 75, 157, 162(2)(b), 165(3)(d) & 5, 232, 258, 259(1), 260; 6th Schedule
  • Land ActNo. 6 of 2012
  • Limitation of Actions ActCap 22
  • Land Registration ActSection 26(1)(b)
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules, 2010Section 210 (as cited in judgment)
  • Universal Declaration of Human RightsArticles 1, 2, 3, 6, 7, 8, 9, 10, 12, 13, 16(1), 17, 23, 25
  • International Covenant on Civil and Political RightsArticles 2, 3, 4, 7, 9-17, 23, 24, 26
  • International Convention on Economic, Social and Cultural RightsArticles 1, 2, 3, 4, 5, 6, 10, 11, 12
  • African Charter on Human and Peoples' RightsArticles 1, 2, 3, 4, 5, 6, 7, 9, 12, 14, 15, 16, 18

Cases cited (12)

  • Mohammed Sais v County Council of Nandi (2013) eKLR
    (2013) eKLR

    ELC's exclusive jurisdiction over constitutional interpretation and enforcement of fundamental rights in land matters

  • Mohammed Balala & 11 others v Attorney General & 7 others (2012) eKLR
    (2012) eKLR

    Consequences of the Attorney General entering appearance but failing to file responses

  • South East Development Co. Limited v Registrar of Titles (2021) eKLR
    (2021) eKLR

    Requirement that Government follow laid-down procedure in land allocation

  • Mwangi Stephen Mutithi v National Land Commission & 3 others (2018) eKLR
    (2018) eKLR

    Procedural requirements in land allocation

  • Martin Lemayian Mokoosio & Anor v Reshman Praful Chandra Vedera & 3 others (2011) eKLR
    (2011) eKLR

    Alternative remedy is no bar to a constitutional petition where remedies sought are efficacious

  • David Maina Kanyoro v Nelson Gathime & 2 others (2021) eKLR
    (2021) eKLR

    A title not backed by written documents may be impeached and cancelled

  • Mumo Matemu v Trusted Society of Human Rights Alliance & Another (2013) eKLR
    (2013) eKLR

    Standards of proof and pleading precision in constitutional petitions

  • Anarita Karimi Njeru v Republic [1980] eKLR 154
    [1980] eKLR 154

    Constitutional violations must be pleaded with reasonable degree of precision

  • Thorp v Holdsworth (1886) 3 Ch. D 637
    (1886) 3 Ch. D 637

    Object of pleadings is to define and narrow the issues for trial

  • Reids Heweet & Company v Joseph AIR 1918 Cal. 717
    AIR 1918 Cal. 717

    Costs follow the event

  • Myres v Defries (1880) 5 Ex. D. 180
    (1880) 5 Ex. D. 180

    Meaning of 'costs shall follow the event'

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others [2014] eKLR
    [2014] eKLR

    Basic rule of costs; costs compensate the successful party, not penalize the loser

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

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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, "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.