Masyuki & 13 others (On behalf of themselves and 396 persons) v County Government of Kitui & 7 others
The bottom line
#A Kenyan court ruled that land claims like adverse possession must go through normal civil courts, but forced evictions without due process violate constitutional rights.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of pleading in constitutional petitions
The petition satisfied the Anarita Karimi precision requirement; formalism should not constrict access to justice under the 2010 Constitution
The court contrasted Anarita Karimi Njeru with the Court of Appeal's approach in Mohamed Fugicha, holding that the 2010 Constitution does not lionize form over substance. Paragraphs 37(a-l) of the petition identified the provisions infringed and the manner of infringement, so the court had no doubt as to the complaints, the respondents and the provisions alleged to be violated.
Adverse possession via constitutional petition
Incompetent; adverse possession claims must follow the Limitation of Actions Act and Order 37 Civil Procedure Rules
Following Parkire Stephen Munkasio v Kedong Ranch, the court held Article 22 is not intended to bypass established dispute-resolution procedures. In any event, the Petitioners exhibited only one photograph of a temporary structure, crops and animals, which could not prove possession, occupation and use of 4,000 acres by 396 persons; adverse possession must rest on de facto use and occupation proved as a fact.
Legal status of LR 12010 (expired lease)
Public land vested in the County Government of Kitui in trust for residents under Article 62 of the 2010 Constitution
The lease to Katoteni Ranching Society expired on 16th August 1987 and was never renewed, so the land reverted to the lessor, the County Council of Kitui. Setting apart under section 117 of the repealed Constitution had extinguished customary rights; on reversion the parcel became public land under Article 62, held by the county government in trust and administered by the National Land Commission.
Legal status of LR 11802 (subsisting lease)
Private land held by the 2nd Respondent under a valid 99-year lease expiring 2064; the Petitioners are trespassers
Under Article 64(b) land held under leasehold tenure is private land. Sections 24 and 25 of the Land Registration Act vest the leasehold interest in the registered proprietor free from unnoted claims. The Petitioners' entry was unjustifiable and itself violated the 2nd Respondent's Article 40 property rights, notwithstanding reduced profitability of the ranching business.
Violation of rights by the 5th-8th Respondents
Police and national government officers attempted eviction without following the mandatory procedures in sections 152A-152I of the Land Act, violating Article 43 rights
The 5th-8th Respondents did not answer the allegations. Photographs of burnt structures, spent cartridges and tear gas canisters supported the claim. However, no names of individual victims or perpetrators among the 3rd and 4th Respondents' members were given, so complicity of those groups was not proved, and damages failed for want of proof of individual loss.
Legal principles established
#- Adverse possession is a private law claim that must be pursued under the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, not by constitutional petition
- Setting apart of trust land under section 117 of the repealed Constitution extinguished pre-existing African customary rights, interests and benefits over the land
- Public land that reverts to a county government on expiry of a lease is vested in the county government in trust for residents and administered by the National Land Commission
- Evictions must strictly comply with the mandatory procedures in section 152G of the Land Act
- Forced evictions without due process violate fundamental rights including dignity, security of the person and housing under Article 43
Court orders
#- 1.Dismissal of prayers (a), (c), (d), (e) and (f) of the petition dated 18th August 2020 for not being proved or not properly before the court
- 2.A declaration that the demolition of some of the Petitioners' houses and property by the 5th to 8th Respondents and the attempted eviction of the Petitioners without following due process violated their fundamental rights to inherent human dignity, security of the person, and accessible and adequate housing under Article 43 of the Constitution
- 3.Each party to bear its own costs of the petition
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution of Kenya 2010 (enforcement of Bill of Rights); Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masyuki & 13 others (On behalf of themselves and 396 persons) v County Government of Kitui & 7 others", Case Analysis (2023). Environment & Land Petition 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20347/eng@2023-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.