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ELCDismissedPetition dated 16/5/2022 (amended 02.02.2023)· [2024] KEELC 3328 (KLR)

Adan v County Government of Mandera & 2 others (Environment & Land Petition E005 of 2022) [2024] KEELC 3328 (KLR)

Environment and Land Court
23 April 2024
JMJ. M. Mutungi
2,564 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 landowner's constitutional petition against eviction, ruling that ordinary civil lawsuits—not constitutional petitions—are the proper way to resolve disputed land ownership.

What this practically means

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Executive summary

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The petitioner, Adan Yarrow Adan, petitioned the Environment and Land Court claiming to be the rightful owner of Plot No. 36, New Shafshafey area, Mandera town, registered with the defunct Mandera Town Council in 2010 and issued a certificate of ownership No. 000610 by the County Government of Mandera in 2017, supported by land rent payment receipts. He alleged that the County Government forcefully and unlawfully evicted him without notice, hearing or compensation to make way for the construction of KMTC Mandera, and sought declarations of violation of his rights to property and fair administrative action, compensation and general damages. The respondents denied his possession and ownership, contending the suit land was reserved in 2011 for the Medical Training College, that the certificate related to a different unsurveyed 50ft by 100ft plot in an informal settlement, and that the petitioner's documents were forged. The respondents also urged that no constitutional issue was raised. The court found that the real dispute was ownership and location of the plot, which was contested and required viva voce evidence subject to cross-examination. Applying KARLO and Gabriel Mutava, the court held constitutional process should not replace statutory civil process, that the petition was an abuse of court process, and dismissed it, ordering each party to bear their own costs. Judgment was delivered virtually at Kerugoya on 23 April 2024.

Key legal issues

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01

Whether the petition was properly brought as a constitutional petition

Holding

The petition was an abuse of court process; the dispute was a civil ownership dispute requiring viva voce evidence

Reasoning

Ownership and location of the plot were contested, requiring cross-examination of witnesses. The court, citing KARLO and Gabriel Mutava, held that constitutional process should not be used for mundane civil disputes where statutory forums exist, and dismissed the petition.

p. 4
02

Amendment of a replying affidavit by substituting the deponent

Holding

Substitution of the office holder's name on the affidavit was not an invalidating amendment

Reasoning

The court compared the initial and amended replying affidavits and found only the name of the Chief Officer changed, the office itself being unchanged; thus the affidavit remained valid.

p. 5

Legal principles established

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  • Constitutional process ought not to be invoked where a statutory civil process exists for resolving the dispute

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 40, 40(3), 47, 50

Cases cited (3)

  • Anarita Karimi Njeru v Republic
    (1976 -1980) KLR 1272
  • Kenya Agricultural and Livestock Research Organization (KARLO) v Edison Sonje Taura & 3 others
    (2021) eKLR
  • Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority
    (2016) eKLR
Jurisdiction invoked
Constitutional petition under Articles 10, 21, 40, 47 and 50 of the Constitution

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, "Adan v County Government of Mandera & 2 others (Environment & Land Petition E005 of 2022) [2024] KEELC 3328 (KLR)", Case Analysis (2024). Petition dated 16/5/2022 (amended 02.02.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3328/eng@2024-04-23

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