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ELCDismissedELC Petition (Mombasa), petition dated 18th December 2018· [2025] KEELC 630 (KLR)

Kisalu & 110 others v Chief Registrar of Lands & 99 others (Environment & Land Petition 22 of 2018) [2025] KEELC 630 (KLR)

Environment and Land Court
19 February 2025
SKS. M. Kibunja
3,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court dismissed squatters' constitutional claims over the Lake Jipe Settlement Scheme because they pleaded rights vaguely and skipped available dispute-resolution steps.

What this practically means

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Executive summary

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The petitioners, long-time occupants claiming to be squatters on the approximately 23,000-acre Lake Jipe Settlement Scheme (LJSS) in Taita Taveta County, sought permanent injunctions against eviction and interference, revocation of letters of allotment and titles issued to other allottees, a declaration of first priority to be settled and issued with title deeds, an accounting of beneficiaries, and investigations by the EACC and CAJ into allocations to public officers. The 1st, 2nd, 4th and 5th respondents opposed through grounds of opposition, contending the petition was misconceived, time-barred and an abuse of process. The court, framed two issues: whether the petitioners established their claim to the required standard, and costs. It noted the withdrawal of claims against the EACC and CAJ, chronic failures of service, and the absence of submissions by the 8th respondent and appearances by most others. Applying the Anarita Karimi Njeru principle as restated in Mumo Matemu, the court found the pleaded constitutional violations too imprecise to adjudicate. It further held that the petitioners should have first exhausted the available settlement and dispute-resolution mechanisms, applying the exhaustion doctrine from the Ramogi and Kabiru decisions, and that the SFT's chargee character showed the petitioners had taken none of the steps the scheme contemplated. Finding no proved violation of any constitutional right, the court dismissed the petition in its entirety and ordered each party to bear its own costs, deeming the matter essentially public interest litigation.

Key legal issues

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01

Whether the petitioners proved violation of their constitutional rights in the allocation of the Lake Jipe Settlement Scheme

Holding

No violation was proved; the court could not determine precisely which of the claimed rights were violated

Reasoning

The petition invoked a long list of constitutional articles (22, 23, 25(c), 27, 35, 48, 60, 62, 63, 232, 234) but did not plead with the particularity required by the Anarita Karimi Njeru principle as restated in Mumo Matemu. The court could not isolate any proved infringement, and the claim of first priority to settlement was premature absent exhaustion of the resettlement procedures.

p. 5
02

Whether the doctrine of exhaustion barred the petition

Holding

Yes; the petitioners should first have pursued the available dispute resolution avenues before invoking the court's jurisdiction

Reasoning

Relying on Ramogi and the Kabiru line of authority, the court held that a constitutional petition is a last resort. The claims were in substance a normal civil dispute attracting remedies under section 13 of the Environment and Land Court Act, and the petitioners had taken no steps such as obtaining SFT loans as the scheme contemplated.

p. 7
03

The character of the Settlement Fund Trustee and its role in settlement schemes

Holding

The SFT is a body corporate whose interest is that of a chargee; its successor is the Land Settlement Fund Board of Trustees under section 135 of the Land Act

Reasoning

Drawing on Lusenaka and Oredo, the court explained the SFT's chargee character: it advanced loans to allocatees secured by charges over the land. The petitioners' own pleadings showed no such loan or charge step was taken by them, undermining their claim to entitlement under the scheme.

p. 7

Legal principles established

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  • Constitutional petitions must plead with reasonable precision the violations alleged, per the Anarita Karimi Njeru principle
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the court's jurisdiction is invoked
  • Land owned by the Settlement Fund Trustee is not government land; the SFT's interest is that of a chargee
  • Costs follow the event under section 27 of the Civil Procedure Act unless otherwise ordered

Court orders

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  1. 1.The petition is without merit and is dismissed in its entirety.
  2. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Agriculture Act Cap 318section 167
  • Agriculture and Food Authority Act Cap 317repeal of Agriculture Act
  • Land Act Cap 280section 135
  • Civil Procedure Act Cap 21section 27; sections 1A and 1B
  • Appellate Jurisdiction Act Cap 9sections 3A and 3B
  • Environment and Land Court Actsection 13
  • Statute of Limitations Actlimitation defence
  • Constitution of Kenya 2010Articles 22(1),(2) & (3)(b), 23(1) & (3), 25(c), 27, 35, 48, 60, 62, 63, 66(1), 159, 232, 234

Cases cited (9)

  • Anarita Karimi Njeru v Republic
    (1980)
  • Mumo Matemu v Trusted Society of Human Rights Alliance & Another
    (2013) eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    (2020) eKLR; Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019
  • R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others
    [2017] eKLR
  • Speaker of National Assembly v Karume
    [1992] KLR 21
  • Geofirey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Eliud Nyongesa Lusenaka & Another vs Nathan Wekesa Omacha
    [1994] eKLR
  • Boniface Oredo versus Wabumba Mukile
    Civil Appeal No. 170 of 1989 (unreported)
Jurisdiction invoked
Article 22 and 23 of the Constitution; Environment and Land Court Act (original jurisdiction)

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, "Kisalu & 110 others v Chief Registrar of Lands & 99 others (Environment & Land Petition 22 of 2018) [2025] KEELC 630 (KLR)", Case Analysis (2025). ELC Petition (Mombasa), petition dated 18th December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/630/eng@2025-02-19

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