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ELCDismissedPetition dated 29/1/2020 (Environment and Land Court, Kitale)· [2025] KEELC 503 (KLR)

Sand & others v Toboo Farmers Co-operative Society & 4 others (Environment & Land Petition 1 of 2020) [2025] KEELC 503 (KLR)

Environment and Land Court of Kenya
11 February 2025
4,679 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land rights petition because the claimants never sued the land's registered owner or proved their own entitlement.

What this practically means

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Executive summary

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Thirty-two petitioners, members of Makutano Group, petitioned the Environment and Land Court at Kitale seeking a declaration of entitlement to 279.8 acres of LR No. 7076(1) and 7076(2) (Quintin Farm, Endebess), vacant possession from members of the 1st respondent (Toboo Farmers Cooperative Society), an order for survey and subdivision, an order compelling the Settlement Fund Trustees to discharge the parcels, and a permanent injunction. They claimed they contributed Kshs.529,540/= in 1980 towards the purchase and relied on a 2015/2016 Dispute Resolution Committee resolution directing subdivision between the two groups, alleging breaches of Articles 26, 27, 28, 29, 38, 39, 40 and 48. The 1st respondent claimed it bought 500 and later 288 acres from Jonathan Kipkoech and Gabriel Mathenge, was authorised to occupy in 1993, and had paid the full purchase price as a bona fide purchaser protected by Article 40. The 2nd and 3rd respondents, despite repeated indulgence, never filed a response, leaving the petitioners' sworn averments uncontroverted. The court framed five issues and held that the petition was properly pleaded and raised genuine constitutional questions, including a legitimate expectation arising from the Ministry's letters directing implementation of the 2016 recommendations. However, the court found that the suit land was owned by the Settlement Fund Trustees from 1997; the petitioners produced no letter of offer or impeachable evidence against that title; their annexures were unverified and unauthenticated; the committee's recommendations were not shown to be anchored in law or enforceable against the title holder; and the failure to join the registered owner was fatal. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the petition met the requirements of the Mutunga Rules and raised constitutional questions

Holding

The petition raised genuine constitutional questions

Reasoning

The court found that the petitioners established a nexus between themselves, the subject matter and the alleged constitutional and statutory obligations of the 2nd and 3rd respondents. The complaints sought answers from the Constitution rather than statutes, and the letters directing implementation of the 2016 recommendations created a legitimate expectation. Uncontroverted averments against the 2nd and 3rd respondents stood per Regulation 28 of the Mutunga Rules.

p. 7
02

Whether the petitioners proved breach of their constitutional rights

Holding

No breach was proved; the petition failed on the evidence

Reasoning

Ownership of the suit land vested in the Settlement Fund Trustees from 5/2/1997. The petitioners produced no letter of offer or evidence of lawful application for the land; their annexures were unverified and unauthenticated. The Dispute Resolution Committee recommendations were not shown to be anchored in law or enforceable against the registered title holder, and the legitimate expectation claimed did not meet the required attributes.

p. 7
03

Non-joinder of the registered owner

Holding

Failure to sue the Settlement Fund Trustees, the registered owner, was fatal to the petition

Reasoning

The court reasoned that the petitioners cannot prove a constitutional breach against respondents who are not owners of the suit land. The Settlement Fund Trustees, the Chief Land Registrar and the Cabinet Secretary were not parties, and the petitioners had to show the committee's findings were enforceable, which they did not.

p. 8

Legal principles established

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  • A party alleging breach of constitutional rights must plead with precision the rights infringed, the manner of infringement and the jurisdictional basis.
  • The burden of proving a constitutional claim lies on the petitioner, who must establish ownership or right over the suit property to invoke Article 40.
  • A legitimate expectation cannot be enforced if it is contrary to explicit provisions of the law or where the underlying findings are not anchored in law.
  • Failure to join the registered owner of the suit land is fatal to a claim for breach of rights relating to that land.

Court orders

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  1. 1.The petition is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21, 22, 23, 25, 26, 27, 28, 29, 38, 39, 40, 48, 50, 69, 159, 258, 260
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) (Practice and Procedure) Rules 2013Rules 10(2), 28
  • Land Registration ActSections 24, 25, 26, 27, 134, 135
  • Repealed Registered Land ActSections 27, 28, 143
  • Repealed Agriculture Act Cap 318Section 167
  • Evidence ActSections 107-112
  • Fair Administrative Actions Actreferenced generally

Cases cited (21)

  • Methodist Church of Kenya -vs.- Mohammed Fugicha & Others
    Petition No. 16 of 2016 [2019] KESC 59 [KLR]
  • Francis Muruatetu & Another -vs- Republic & Others
    [2016] eKLR
  • Mumo Matemu -vs- Trusted Society for Human Rights Alliance
    [2014] eKLR
  • Gladys Jepkempoi -vs.- Zakayo Chepkonga Cheruiyot
    [2021] eKLR
  • Hakiziman Abdul Abdulkarim -vs- Arrow Motors EA Ltd & Another
    [2017] eKLR
  • Turkana County Government & Others -vs.- Attorney General & Another
    [2016] eKLR
  • Bernard Murage -vs.- Fine Serve Africa Ltd & Another
    [2015] eKLR
  • Patrick Mbau Karanja -vs- Kenyatta University
    [2012] eKLR
  • Geofirey Muthinja Kibiru & Others vs.- Samuel Munge Henry & 1956 Others
    [2015] eKLR
  • Mitu-Bell Welfare Society -vs.- Kenya Airports Authority & Others (Initiative for Strategic Litigation in Africa (Amicus Curiae)
    Petition 3 of 2018 [2021] KESC 34 [KLR]
  • Kenya Airports Authority -vs.- Mitu-Bell Welfare Society & Others
    [2016] eKLR
  • Susan Waithera Kariuki & Others -vs.- Town Clerk Nairobi City Council & Others
    Petition No. 66 of 2011
  • Jatrose Ayuma & Others -vs.- The Registered Trustees of the Kenya Railways Staff Retirement Pension Scheme & Others
    NRB HC Petition No. 65 of 2010
  • Eliud Nyongesa Lusenaka & Another -vs.- Nathan Wekesa Ochacha
    [1994] eKLR
  • Boniface Oreto -vs.- Wabumba Mukite
    Civil Appeal No. 17 of 1989
  • Raila Odinga & Others -vs.- IEBC & Others
    [2017] eKLR
  • Dr. Joseph Arap Ng'ok -vs.- Moijjo Ole Keiwua & Others
    [1997] eKLR
  • Nelson Kazungu Chai & Others -vs.- Pwani University
    [2017] eKLR
  • Fanikiwa Ltd -vs.- Sirikwa Squatters Group & Others
    [2022] KECA 1286 [KLR]
  • CCK & Others -vs- Royal Media Services & Others
    [2014] eKLR
  • M'Mugwika M'Rugongo -vs.- Settlement Fund Trustees & Another
    [2022] eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution (enforcement of Bill of Rights), read with the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules 2013

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, "Sand & others v Toboo Farmers Co-operative Society & 4 others (Environment & Land Petition 1 of 2020) [2025] KEELC 503 (KLR)", Case Analysis (2025). Petition dated 29/1/2020 (Environment and Land Court, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/503/eng@2025-02-11

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