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ELCPartially AllowedEnvironment & Land Petition 38 of 2021· [2023] KEELC 17814 (KLR)

Mbogho & 8 others v Director Lands Adjudication and Settlement & 4 others; County Government of Taita Taveta (Interested Party)

Environment and Land Court of Kenya
15 May 2023
8,390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo completed land allocations but ordered officials to reveal who actually benefited from the Voi land sub-division.

What this practically means

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Executive summary

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Nine Petitioners, claiming to be bona fide occupants and beneficiaries of Voi Municipal Block 3, petitioned under Articles 20, 22, 23, 25(c), 27, 35, 40 and related provisions of the Constitution, seeking a declaration of first priority in the allocation of plots arising from the sub-division of the suit property, an order compelling the 1st, 2nd and 3rd Respondents to allocate plots and issue title deeds, a permanent injunction against interference with their possession, and an order compelling the 1st to 3rd and 5th Respondents to account for and disclose the list of beneficiaries of the sub-division. The Respondents and the Interested Party opposed, arguing the adjudication was complete, titles had issued (including to the 1st Petitioner), registered owners were not joined, the Petition failed the Anarita Karimi Njeru precision test, and the Petitioners bypassed statutory complaint mechanisms. The court framed the issues around the three substantive prayers and costs. It declined the declaration and allocation orders, holding the adjudication process complete, the orders incapable of taking effect, and that cancelling or affecting issued titles without joining the registered owners would breach their non-derogable right to a fair hearing under Articles 50 and 25(c). The permanent injunction was refused as moot and academic. However, grounding itself in Article 35, the Access to Information Act, 2016, and the national values of transparency and accountability, the court ordered the 1st, 3rd and 5th Respondents to disclose the beneficiary list within 21 days, holding that neither a section 8 application nor a CAJ complaint was a precondition. Each party was ordered to bear its own costs given the public interest. The Petition partially succeeded.

Key legal issues

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01

Whether the Petitioners were entitled to priority allocation of plots and issuance of title deeds

Holding

The prayer was declined; the adjudication process was complete, titles had issued, and the order was incapable of taking effect without joining the registered owners

Reasoning

The court held that upon adjudication and issuance of titles, Voi Municipal Block 3 ceased to exist, leaving only resultant titles. Any order allocating plots or effectively cancelling titles would affect registered owners who are not parties, breaching their right to a fair hearing under Article 50, a non-derogable right under Article 25(c). The Petitioners also failed to demonstrate why they deserved priority allocation, and the Respondents tendered no evidence of the allocation criteria.

p. 10
02

Whether a permanent injunction could issue

Holding

Declined as moot, ambiguous and incapable of taking effect

Reasoning

The court distinguished permanent from temporary injunctions, noting a permanent injunction issues after full determination of rights. Since the adjudication was complete and titles issued, the injunction sought would amount to directing the Respondents on how to execute their duties and was a mere academic discourse. The court also noted the Petitioners appeared to want to turn the Court into an investigative entity.

03

Whether the Respondents should disclose the list of beneficiaries of the sub-division

Holding

Granted; the 1st, 3rd and 5th Respondents were ordered to provide the beneficiary list within 21 days

Reasoning

The court grounded the disclosure in Article 35 of the Constitution and the Access to Information Act, 2016, reinforced by Article 10 and Article 232(f) on transparency and accountability. The Respondents had taken a passive role and failed to justify refusal; the beneficiary list is a public document in their custody. Reliance on section 8 or a complaint under the Act was not a precondition, per Katiba Institute.

p. 14
04

Who bears the costs

Holding

Each party to bear its own costs

Reasoning

Although costs follow the event under section 27(1) of the Civil Procedure Act and the Petitioners partly succeeded, the court considered the matter one of great public interest and therefore exercised its discretion to order each party to bear its own costs.

p. 15

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A court cannot make orders cancelling or affecting titles of registered owners who are not parties to the suit, as this would violate their non-derogable right to a fair hearing under Articles 50 and 25(c)
  • A report to the Commission on Administrative Justice is not a condition precedent to filing a petition alleging violation of the right of access to information under Article 35

Court orders

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  1. 1.Judgment entered in favour of the Petitioners only as far as Prayer (c) of the Petition is concerned; prayers (a) and (b) declined
  2. 2.An order directing the 1st, 3rd and 5th Respondents to provide the list of persons who benefited from the sub-division of the Voi Municipal Block to the Petitioners within 21 days of the judgment
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20(1)(2)(3), 22, 23(1)(3), 25(c), 27, 35, 40, 48, 50, 60, 61, 165(3)(b), 232(f), 234
  • Land Registration ActSections 24(a), 26(1)
  • Access to Information Act, 2016Sections 3, 8(1), 14, 21, 24
  • Land Adjudication Act, Cap 284Sections 6, 9, 29(3), 31
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A, 27(1), 63(e)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 & 3
  • Constitution (Protection of Fundamental Rights and Freedoms) Rules, 2013

Cases cited (24)

  • Anarita Karimi Njeru v Republic

    Constitutional violations must be pleaded with a reasonable degree of precision

  • Kenya Human Rights Commission & Ano v Non-Governmental Organisation Co-ordination Board
    Nbi High Court Petition No. 404 of 2017 (2018) eKLR

    Cited by Petitioners on constitutional rights

  • Kimwele Kithoka & 26 Others v Deputy County Commissioner Kyuso Sub County & 7 Others
    (2022) eKLR

    Cited by Petitioners on constitutional rights

  • Wilfred Juma Wasike & 11 Others v Ministry of Interior & Co-ordination & Ano
    (2022) eKLR

    Cited by Petitioners on entitlement to allocation of plots

  • Judicial Service Commission v Mbalu Mutava & Ano
    (2015) eKLR

    Natural justice comprises the duty to act fairly

  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil Appeal 290 of 2012 (2013) eKLR

    Precision in pleading constitutional violations

  • Mbaki & Others v Macharia & Another
    (2005) 2 EA 206

    Cited by 4th Respondent on natural justice/non-joinder

  • Pashito Holdings & Ano v Ndungu & 2 Others
    KLR (E&L) 295

    Cited by 4th Respondent on natural justice

  • Nyongesa & 4 Others v Egerton University College
    (1990) eKLR 692

    Cited by 4th Respondent on natural justice

  • Cozens v North Devon Hospital Management Committee & Ano
    (1966) 2 ALL ER 799

    Cited by 4th Respondent on natural justice

  • Msagha v Chief Justice & 7 Others
    Nairobi HCMCA No. 1062 of 2004 (2006) 2 KLR 553

    Cited by 4th Respondent on natural justice

  • Raila Amolo Odinga & Ano v Independent Electoral and Boundaries Commission & 2 Others
    (2017) eKLR

    Parties are bound by their own pleadings; a court cannot frame issues not pleaded

  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    (2013) eKLR

    Law is extremely protective of title; only two instances permit challenge of title

  • Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another
    [2018] eKLR

    Article 50 fair trial rights apply in civil cases

  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR

    Test for granting a mandatory injunction; higher threshold than prohibitory injunction

  • Kenya Breweries Ltd v Washington Okeyo
    (2002) EA 109

    Principles governing grant of a mandatory injunction

  • Giella v Cassman Brown

    Locus classicus on prohibitory injunctions

  • Jay Super Power Cash and Carry Ltd v Nairobi City Council and 20 others
    CA 111/2002

    A trespasser should give way pending determination; trespass not compensable excuse

  • President of Republic of South Africa v M & G Media

    Right of access to information gives effect to accountability, responsiveness and openness

  • Brummer v Minister for Social Development & Others

    Public must have access to information held by the state to give effect to founding values

  • Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission

    A public authority denying access to information bears the onus of justifying the refusal

  • Katiba Institute v Presidents Delivery Unit & 3 others
    [2017] eKLR

    Reporting to CAJ is not a condition precedent to a petition on access to information

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

    Costs follow the event, read distributively across issues

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

    Meaning of 'costs shall follow the event'

Jurisdiction invoked
Articles 20, 22, 23 and 165(3)(b) of the Constitution of Kenya, 2010 (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, "Mbogho & 8 others v Director Lands Adjudication and Settlement & 4 others; County Government of Taita Taveta (Interested Party)", Case Analysis (2023). Environment & Land Petition 38 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17814/eng@2023-05-15

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