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ELCDismissedNot stated in judgment· [2024] KEELC 6125 (KLR)

Jefwa & 11 others (As Committee Members and Representatives of Majaoni Primary School) v Njenga & 11 others; Muslim for Human Rights (MUHURI) (Interested Party) (Environment & Land Petition 1 of 2017) [2024] KEELC 6125 (KLR)

Environment and Land Court
26 September 2024
NMN.A. MATHEKA
2,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa's Environment and Land Court dismissed a large historical land injustice petition, directing claimants to first take their case to the National Land Commission.

What this practically means

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Executive summary

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The petitioners, claiming to represent about 2,500 households (16,000 residents) who have occupied Land Parcel No. 384/II/MN and its subdivisions for 35 to 60 years, sought cancellation of titles held by the 1st to 9th respondents, their registration as proprietors of the parcels, and prohibition of a settlement scheme by the 10th to 13th respondents, alleging violations of rights to fair administrative action, property, information and public participation. The 1st to 5th cross-petitioners, professing to be bona fide purchasers of subdivisions 4406 to 4411/II/MN, cross-petitioned for declarations of breach and permanent and mandatory injunctions against what they termed illegal occupation, noting pending eviction suits. The court noted that a survey it had ordered in October 2023 was never filed but proceeded on the evidence before it. Applying Anarita Karimi Njeru and Mumo Matemu, the court held the petition failed to plead with precision the constitutional provisions infringed or the manner of infringement, despite citing numerous articles. On historical land injustice, the court accepted it had jurisdiction (per Koech) but, following Wambega and Ledidi Ole Tauta, exercised discretion to defer to the National Land Commission under Article 67(2)(e) and Section 15 of the NLC Act, given contested facts and an unprecedented number of claimants. The cross-petition was found to duplicate pending civil proceedings. Both the petition and cross-petition were dismissed with no order as to costs.

Key legal issues

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01

Sufficiency of pleading in constitutional petitions

Holding

The petition failed the Anarita Karimi Njeru threshold as no particulars of violations were pleaded despite citing numerous articles

Reasoning

The petitioners cited Articles 10, 27, 28, 29, 30, 31, 32, 35, 40, 60 and 62 but pleaded no particulars of the alleged violations or the manner of infringement, nor identified with precision the specific parcels claimed. The court applied Anarita Karimi Njeru and Mumo Matemu, finding the petition general in nature and incapable of meritorious determination.

p. 4
02

Forum for historical land injustice claims

Holding

Although the ELC has jurisdiction over historical injustice claims, the court in its discretion deferred to the NLC where facts are highly contested and claims unprecedented

Reasoning

The court accepted that following Chief Land Registrar v Koech, the ELC need not wait for NLC investigation, but per Wambega and Ledidi Ole Tauta it may decline to exercise jurisdiction where another body has capacity. With contested facts, thousands of claimants and unascertained parcels, Section 15 NLC Act makes the NLC the appropriate investigative forum.

p. 6
03

Merits of the cross-petition

Holding

The cross-petition was dismissed as it duplicated pending civil proceedings

Reasoning

The cross-petitioners sought declarations and injunctions over occupation of subdivisions 4406–4411/II/MN, but the court found the matter was already being handled as a civil suit, with related eviction cases (ELC 83 of 2012 and ELC 205 of 2015) still pending, and dismissed it as not merited.

p. 6

Legal principles established

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  • A petitioner seeking constitutional redress must plead with precision the provisions infringed and the manner of infringement
  • Historical land injustice claims may be deferred to the NLC where the court's discretion favours referral

Court orders

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  1. 1.The petition is dismissed
  2. 2.The cross-petition is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 10, 19, 20, 27, 28, 29, 30, 31, 32, 35, 40, 60, 62, 67(2), 67(2)(e), 73
  • National Land Commission ActSections 15 and 15(3)(b)

Cases cited (5)

  • Anarita Karimi Njeru v The Republic
    [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Henry Wambega & 733 others v Attorney General & 9 others
    [2020] eKLR
  • Ledidi Ole Tauta & Others v Attorney General & 2 others
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court); National Land Commission Act Section 15 considered

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, "Jefwa & 11 others (As Committee Members and Representatives of Majaoni Primary School) v Njenga & 11 others; Muslim for Human Rights (MUHURI) (Interested Party) (Environment & Land Petition 1 of 2017) [2024] KEELC 6125 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6125/eng@2024-09-26

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