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ELCDismissedPetition dated 22nd December 2021 (Malindi ELC)· [2025] KEELC 445 (KLR)

Mikaal Limited v Land Registrar Kilifi County & 2 others (Petition 38 of 2021) [2025] KEELC 445 (KLR)

Environment and Land Court
5 February 2025
3,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's petition, confirming that ownership disputes must be fought in civil suits, not constitutional petitions.

What this practically means

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Executive summary

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By a petition dated 22nd December 2021, Mikaal Limited sought orders directing the Registrar of Lands to expunge entries made on 10th March 2015 registering Dawagi Investments Limited as owner of Plot No. Chembe/Kibabamche/376, to cancel the 3rd respondent's title, and to issue a new title deed to the petitioner. The petitioner relied on a certificate of lease dated 30th December 1996, alleging its title was cancelled without notice or hearing. The 3rd respondent opposed, contending the petition was forum shopping and an abuse of process given prior proceedings between the same parties: Malindi ELC Petition No. 17 of 2015 (formerly Mombasa HCC Petitions Nos. 12, 13 & 14 of 2011) challenging an embargo, and Malindi ELC No. 42 of 2021 in which Olola J dismissed the petitioner's injunction application after finding the petitioner's lease had no evidence of registration while the 3rd respondent's title was supported by transfer documents and searches. The court, per E. K. Makori J, framed the issue as whether to cancel the 3rd respondent's title and issue a new title to the petitioner. Applying the doctrine of constitutional avoidance, citing Yaa v District Land Registrar Kilifi County, Joseph Musikali Mutemi v NLC and Valentine Odhiambo v HF Development, the court held that contested ownership disputes belong in a civil suit, and that since a similar suit was pending, the petition was an abuse of the judicial process. The petition was dismissed with costs on 5th February 2025.

Key legal issues

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01

Whether the petition should be dismissed for offending the doctrine of constitutional avoidance and sub judice

Holding

Yes. The rival claims of title should be determined in a civil suit, not a constitutional petition, and a similar suit (Malindi ELC No. 42 of 2021) between the same parties over the same property was still pending.

Reasoning

The court noted it had already ruled on a preliminary objection recording that the parties and subject matter were the same as in the pending ELC No. 42 of 2021, in which Olola J had declined an injunction after tracing the root of the parties' titles. The petitioner abandoned that suit midstream to file this petition. Citing Yaa v District Land Registrar Kilifi County, Joseph Musikali Mutemi v NLC and Valentine Odhiambo v HF Development, the court held contested ownership disputes do not belong in constitutional petitions and the petition was an abuse of process.

p. 6
02

Whether the petitioner's certificate of lease established prima facie ownership sufficient to warrant cancellation of the 3rd respondent's title

Holding

The petitioner did not discharge its burden; it produced only a certificate of lease without evidence of registration, whereas the 3rd respondent produced a title deed, transfer documents and official searches.

Reasoning

The 3rd respondent contended, relying on Section 26(1) of the Land Registration Act, that the petitioner had to show by material evidence that its certificate of lease issued on 30th December 1996 was issued upon registration or transfer from Pekiwa Investments Company Limited, and no official search or white card was produced. The 3rd respondent, by contrast, produced a title deed dated 10th March 2015, transfer documents, receipts, Land Control Board consent and discharge of charge. The court did not reach the merits, having dismissed the petition on constitutional avoidance grounds.

p. 3

Legal principles established

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  • A constitutional petition is not the proper forum to determine contested ownership disputes where another manner is provided by law - the doctrine of constitutional avoidance
  • Instituting successive suits over the same subject matter and parties while abandoning a pending suit amounts to forum shopping and abuse of the judicial process

Court orders

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  1. 1.The petition is hereby dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 26(1)(a)(b)

Cases cited (5)

  • Mikaal Limited v Dawagi Investments Limited (Environment & Land Case 42 of 2021)
    [2022] KEELC 3385 (KLR) (28 July 2022) (Ruling)
  • Yaa v District Land Registrar Kilifi County (Petition 23 of 2022)
    [2023] KEELC 21694 (KLR) (16 November 2023)
  • Joseph Musikali Mutemi v National Land Commission & 2 others
    [2021] eKLR
  • Valentine Odhiambo & 2 others v HF Development & Investment Ltd & another
    [2021] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging violation of land rights, Article 40 invoked by the parties); Environment and Land Court Act

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, "Mikaal Limited v Land Registrar Kilifi County & 2 others (Petition 38 of 2021) [2025] KEELC 445 (KLR)", Case Analysis (2025). Petition dated 22nd December 2021 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/445/eng@2025-02-05

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