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ELCDismissedPetition E13 of 2020· [2023] KEELC 18778 (KLR)

Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 others (Interested Parties)

Environment and Land Court
10 July 2023
7,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a community's land claim because the association sued in its own name and produced no solid evidence of ancestral ownership.

What this practically means

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Executive summary

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The petitioner, Taireni Association of Mijikenda, an association registered under the Societies Act, petitioned the Environment and Land Court at Malindi on behalf of the Giriama/Mijikenda community, seeking declarations that the Witu suit lands were the community's ancestral land, that their displacement by the Shifta in 1964 and subsequent allocation of the land to the 1st - 5th respondents amounted to a historical land injustice, and certiorari quashing the leases, titles and subsequent transactions over six parcels. The respondents and the 3rd and 4th interested parties opposed, contending the petitioner lacked capacity to sue, that the land was not ancestral, and that titles were lawfully acquired. The 1st, 3rd, 4th, 5th, 6th and 7th respondents did not enter appearance. The court framed four issues: locus standi, the petitioner's interest in the land, the legality of the grants, and infringement of constitutional rights. Holding that a society registered under the Societies Act can only sue through its officials, and that the petitioner did not fall within the 'person' contemplated by articles 260 and 22, the court found the petitioner lacked locus standi. In any event, the burden of proving ancestral land under article 63(2)(d) lay on the petitioner, whose historical narration was of unverified authenticity and unsupported by evidence of members' occupation. Titles were prima facie indefeasible under section 26 of the Land Registration Act; fraud was neither pleaded with particularity nor strictly proved; and the Anarita Karimi Njeru precision threshold was not met. The petition was dismissed with costs.

Key legal issues

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01

Locus standi of an association registered under the Societies Act

Holding

The petitioner, a society registered under the Societies Act, lacked locus standi to institute the petition in its own name; it could only sue through its officials, and it did not fall within the 'person' envisaged under articles 260 and 22 of the Constitution.

Reasoning

The court adopted the settled position that a society registered under the Societies Act can only sue or be sued through its officials, citing Mavoko Land Development and Evans Otiende Omollo. Although article 22(2)(d) allows associations to sue in the interest of members, the court found the petitioner did not fall within the article 260 definition of 'person' and declined to bend the law to accommodate the claim.

p. 12
02

Burden of proving ancestral/community land claim

Holding

The claim for ancestral land is founded on article 63(2)(d) of the Constitution, and the burden of proving the suit property was ancestral land lay squarely on the petitioner, which failed to discharge it.

Reasoning

The court held that the petitioner's historical narration (PPK-2) did not state with precision that its members occupied the suit property and its authenticity could not be verified. A constitutional petition must be backed by cogent evidence. There was no evidence any member resided on the land before the grants were issued to the 1st - 5th respondents.

p. 13
03

Indefeasibility of title and allegations of fraud

Holding

Registered titles are prima facie evidence of absolute and indefeasible ownership under section 26 of the Land Registration Act and can only be challenged on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition, none of which was proved.

Reasoning

The court noted article 64 protects private land and section 26 of the Land Registration Act shields registered proprietors. The Land Registrar produced official records of the grants. Fraud must be strictly pleaded and proved, and in the absence of evidence of illegality the court would not interfere with the respondents' ownership.

p. 13
04

Precision required in constitutional petitions (Anarita Karimi Njeru threshold)

Holding

The petitioner failed to meet the Anarita Karimi Njeru threshold: it listed infringed articles but gave no evidence of how each respondent violated them.

Reasoning

The petitioner alleged arbitrary arrests and degrading treatment of members under articles 27, 28 and 29 but named no victims or perpetrators and produced no evidence. The court held that a petitioner must demonstrate with precision the provisions breached, the breach and the manner of breach, and found no proof of infringement of articles 40, 43 and 47.

p. 14

Legal principles established

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  • An association registered under the Societies Act is not a juristic person with capacity to sue or be sued in its own name; it can only sue through its officials.
  • The burden of proving that land is ancestral land under article 63(2)(d) of the Constitution lies on the party asserting the claim.
  • A constitutional petition must be supported by cogent evidence and must set out with precision the provisions infringed and the manner of infringement.
  • Allegations of fraud must be pleaded and strictly proved; fraud cannot be inferred from the facts.

Court orders

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  1. 1.The petition is dismissed with costs.
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights) read with Articles 40, 43, 47, 63 and 64 on land 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, "Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 others (Interested Parties)", Case Analysis (2023). Petition E13 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18778/eng@2023-07-10

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