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ELCDismissedPetition dated 20.5.2024· [2024] KEELC 6916 (KLR)

Marete v CECM Lands Physical Planning Urban Development, Housing and Public Works & another (Petition E008 of 2024) [2024] KEELC 6916 (KLR)

Environment and Land Court of Kenya
16 October 2024
4,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a landowner's constitutional challenge over Majengo estate plots because he had no expert evidence proving the alleged illegal resurvey.

What this practically means

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Executive summary

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The petitioner, Rajab Osman Marete, legal administrator of the estate of the registered owner of Plot No. Meru Municipality Old Town (Majengo 160, formerly 67), petitioned the County Government of Meru and others alleging that surveying, re-planning and issuance of title deeds in the Majengo area were carried out without public participation or ground verification, resulting in title deeds that did not reflect the actual position of plots. He sought a permanent injunction against trespass and a declaration that the survey and titling process was null and void for contravening constitutional rights. He complained of demolition notices issued in 2023, demolition of structures, and creation of an expanded access road without due process. The respondents, through Eric Munene Njiru, maintained that the 2017 survey and titling were done by national government organs; that the county merely re-established beacons per published survey plans of the Director of Surveys; that structures encroached on the road reserve; and that stakeholder meetings and adequate notices preceded the works. The court framed five issues, including standing, exhaustion of PLUPA mechanisms, whether a constitutional question arose, entitlement to reliefs, and costs. It held the petitioner had standing as administrator and community chairman, and that exhaustion was not a bar since no liaison committee decision was exhibited. However, the petitioner failed to prove the alleged violations: no expert reports, surveyors, registrars or engineers were called to establish resurvey, re-parcellation or encroachment. The court dismissed the petition with no order as to costs.

Key legal issues

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01

Whether the petitioner had standing to sue on his own behalf and on behalf of Majengo residents without written authority

Holding

As legal administrator of the estate, chairman of the Majengo community and a resident land user, he had the right to bring the petition notwithstanding lack of written authority

Reasoning

The petitioner wore multiple capacities - administrator, chairman of the residents, and resident land user. The court found these capacities sufficient to sue on his own accord and for other residents, even without written authority from the plot owners.

p. 6
02

Whether the petitioner was obliged to exhaust internal mechanisms under PLUPA

Holding

No, because the respondents did not produce any appealable decision of a liaison committee, and public participation forums failed to resolve the complaints

Reasoning

Although a liaison committee exercises primary adjudicatory jurisdiction under PLUPA, the respondents did not place before the court any decision the petitioner could have appealed. The complaints were raised in writing from 2016 and consultation meetings failed to resolve them, so exhaustion was not a bar.

p. 7
03

Whether the petition raised a constitutional question and proved a violation of constitutional property rights

Holding

The petition raised constitutional issues regarding property rights under Article 40(3)(b), but the petitioner failed to prove the alleged infringement

Reasoning

Deprivation of property for a public purpose must accord with the Constitution and an Act of Parliament, with compensation and access to court. However, the petitioner produced no expert reports, survey reports, or evidence from surveyors, registrars or engineers to demonstrate that the access road exceeded the existing survey plans or encroached on private plots. Allegations of a 2017 resurvey were also unproven; the survey, planning and issuance of titles in 2017 were done by national government organs.

p. 8
04

Whether the petition met the standards of precision required of constitutional petitions

Holding

The petition was haphazardly drafted and imprecise, though the annexures enabled the respondents to respond

Reasoning

Citing Anarita Karimi Njeru and Mumo Matemu, the court emphasized precision, clarity and specificity in constitutional petitions, including a link between the aggrieved party, the constitutional provisions infringed and the reliefs sought. The petition in this case was found to be drafted haphazardly, though its annexures allowed the respondents to answer the complaints.

p. 6

Legal principles established

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  • A constitutional question is one whose resolution requires the interpretation of the Constitution rather than of a statute; not every violation of the law must be raised as a constitutional issue where a statutory remedy exists
  • A party alleging breach of a constitutional right or freedom must prove it with tangible and cogent evidence
  • Alternative statutory dispute-resolution mechanisms must be exhausted before resorting to a constitutional petition

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159; Article 40(3)(b)
  • Mutunga RulesRules 4 & 10
  • Physical Land Use and Planning Act (PLUPA)Section 61(4)
  • County Government ActSection 115
  • Public Roads and Roads of Access Act (Cap 399)Sections 2, 9, 11
  • Land Registration ActSection 98
  • Survey Act

Cases cited (19)

  • Anarita Karimi Njeru vs Republic
    (1979) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and others
    (2014) eKLR
  • CCK vs Royal Media Services
    (2014) KESC 53 (KLR) (29th September 2014) (judgment)
  • Benard Ouma Omondi & another vs AG. & another
    (2021) eKLR
  • Abdullah Mangi Mohamed vs Lazarus Beja & others
    (2021) eKLR
  • Silas Make Otuke vs A.G. & others
    (2014) eKLR
  • Meme vs Republic
    (2004) eKLR
  • Kiambu County Tenants Welfare Association vs AG & another
    (2017) eKLR
  • Harrison vs AG of Trinidad & Tobago
    (1980) A.C 265
  • Bernard Murage vs Fine Serve Africa Ltd, & others
    (2015) eKLR
  • Gabriel Mutava & others vs Managing Director Kenya Ports Authority & another
    (2016) eKLR
  • Speaker of National Assembly vs James Njenga Karume
    (1992) eKLR
  • National Assembly of Kenya vs Kina & another
    Civil Appeal No.166 of 2019 (2022) KECA 548 (KLR) (18th June 2022) (Judgment)
  • Jimmy Ndaka Munde & another vs County Government Kilifi
    (2021) eKLR
  • Katungi Developers Ltd vs A.G. & another
    (2019) eKLR
  • Silipet Properties Ltd & another vs Chege Mwaura & another
    (2017) eKLR
  • Dellian Langata Ltd vs Symon Thuo Muhia & others
    (2018) eKLR
  • Moses Wamuti Kinuthia vs John Njau Kimani
    (2020) eKLR
  • Gitobu Imanyara & others vs AG
    (2016) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of fundamental rights, Article 40 raised; Mutunga Rules 4 & 10)

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, "Marete v CECM Lands Physical Planning Urban Development, Housing and Public Works & another (Petition E008 of 2024) [2024] KEELC 6916 (KLR)", Case Analysis (2024). Petition dated 20.5.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6916/eng@2024-10-16

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