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ELCDismissedPetition (Mombasa), LR MN/VI/244 matter - number not stated in judgment· [2024] KEELC 6124 (KLR)

Singh v Kenya Railways Corporation & 2 others (Environment and Land Petition E009 of 2023) [2024] KEELC 6124 (KLR)

Environment and Land Court of Kenya
24 September 2024
NMN. A. Matheka
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner had to first ask the Land Registrar to remove a railway restriction before going to court, so his petition failed.

What this practically means

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Executive summary

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The petitioner, registered owner of LR MN/VI/244 (approximately 0.7466 hectares), petitioned the Environment and Land Court at Mombasa seeking declarations that an encumbrance placed on his land on 14th April 2015 for the compulsory acquisition of 0.7260 hectares for the Mombasa-Nairobi Standard Gauge Railway was illegal, an order for its removal, declarations that his rights under Articles 40 and 47 of the Constitution were infringed, general damages, mesne profits of Kshs. 3,600,000 per month with interest, and costs. He averred that Gazette Notice No. 12828 of 14th December 2018 rescinded the acquisition and the SGR was completed without using the land, but the encumbrance was never lifted, frustrating transactions on the property. The 1st respondent, through the affidavit of Stanley Gitari, admitted the gazettement and degazettement but denied any duty to remove the encumbrance, contending that under sections 107(5) and (5B) of the Land Act and sections 76 and 78(1) of the Land Registration Act the petitioner should have applied to the Registrar for removal of the restriction and had not done so. The court framed a single issue - whether the petition had merit. Applying Anarita Karimi Njeru, John Harun Mwau v Peter Gastrol and Currie & De Waal, the court held that the encumbrance was a restriction under section 76 of the Land Registration Act whose removal required first an application to the Registrar under section 78(1); the petitioner's letter to the 1st respondent did not satisfy this, offending the doctrines of ripeness and constitutional avoidance, and none of the exceptions to that doctrine applied since the claim could be brought as an ordinary civil suit. The petition was dismissed with costs on 24th September 2024.

Key legal issues

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01

Whether the petition was ripe and properly premised on constitutional infringement given the unexhausted statutory remedy under section 78 of the Land Registration Act

Holding

The petition was not merited; the petitioner failed to first apply to the Registrar for removal of the restriction and the doctrine of constitutional avoidance applies

Reasoning

The encumbrance placed during compulsory acquisition is a restriction under section 76 of the Land Registration Act, whose removal is governed by section 78. Section 78(1) requires an application to the Registrar first; only then may a proprietor approach the court under section 78(2). The petitioner merely wrote a letter to the 1st respondent. The constitutional route was therefore premature and avoidable.

p. 3
02

Whether none of the exceptions to the doctrine of constitutional avoidance applied

Holding

All three exceptions failed - the petitioner did not take the first step, and the dispute was resolvable by an ordinary civil suit

Reasoning

Relying on John Harun Mwau v Peter Gastrol and Currie & De Waal's Bill of Rights Handbook, the court identified the exceptions to constitutional avoidance: clear violation directly relevant, absence of alternative ordinary relief, and wastefulness of a non-constitutional resolution. The petitioner's non-compliance with section 78 and the availability of a civil suit defeated all three exceptions.

p. 3

Legal principles established

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  • Where a statutory mechanism exists (application to the Registrar for removal of a restriction under section 78 of the Land Registration Act), that remedy must first be exhausted before invoking the Constitution

Court orders

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  1. 1.The petition is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Land Act 2012sections 107(5), 107(5B), 111(1), 115(1)
  • Land Registration Act Cap 300sections 76, 78(1), 78(2)

Cases cited (2)

  • Anarita Karimi Njeru vs Republic
    (1979) eKLR
  • John Harun Mwau vs Peter Gastrol & 3 others
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging infringement of Articles 40 and 47

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, "Singh v Kenya Railways Corporation & 2 others (Environment and Land Petition E009 of 2023) [2024] KEELC 6124 (KLR)", Case Analysis (2024). Petition (Mombasa), LR MN/VI/244 matter - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6124/eng@2024-09-24

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