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ELCDismissedELCPET No. 4 of 2020 (consolidated with ELCC No. 181 of 2020)· [2025] KEELC 1020 (KLR)

Kadzinga & another v Cabinet Secretary for Land, Housing & Urban Development & 6 others; Kadzinga (Plaintiff to the Counterclaim); Mwanduka & 5 others (Defendant to the Counterclaim) (Environment & Land Petition 4 of 2020 & Environment & Land Case 181 of 2020 (Consolidated)) [2025] KEELC 1020 (KLR)

Environment and Land Court
5 March 2025
6,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed both sides' land ownership claims and sent the boundary questions back to the Kilifi Land Registrar for determination.

What this practically means

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Executive summary

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This is a judgment of the Environment and Land Court at Mombasa (S. M. Kibunja, J) in two consolidated first-instance matters: ELCPET No. 4 of 2020, a constitutional petition by Mbaji Muta Kadzinga, and ELCC No. 181 of 2020, a suit by Mwanduka Ndune Mwanduka against, among others, Kadzinga and Karisa Mwambanyama. The dispute concerns ownership of plots 218, 219, 220 and 221 in Mwawesa Adjudication Section, Kilifi, tracing back to Kaloleni Land Case No. 10 of 1979, in which the petitioner's father defeated the plaintiff's father over unreferenced land. The court framed four issues: res judicata vis-à-vis the 1979 case, the fate of the 1979 suit land after adjudication, ownership of plot 221, and costs. It dismissed the petition because the petitioner failed to plead constitutional violations with precision and had raised all his claims in the counterclaim to the ordinary suit, rendering the petition duplicative under the exhaustion doctrine. On the suit, the court found the evidence incoherent and contradictory, held that plot 218 was not shown to be the adjudicated successor of the 1979 suit land, and confirmed plot 221 belongs to the deceased 3rd respondent by virtue of the Minister's decision in appeal No. 1 of 2009, against whose estate no orders could issue as it was not a party. Both the plaintiff's suit and the counterclaim were dismissed for failure to prove the claims on a balance of probabilities. Exercising its overriding objective, the court on its own motion referred the unresolved ownership and boundary disputes over plot 220 and a portion of plot 218 to the Land Registrar, Kilifi, based on the adjudication register, with reports due in 90 days. Each party was ordered to bear their own costs in both matters.

Key legal issues

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01

Whether the constitutional petition was properly brought or should have been an ordinary suit

Holding

The petition was dismissed because the claims were duplicative of the counterclaim in the ordinary suit and the statutory adjudication remedies had to be exhausted first

Reasoning

The court applied the exhaustion doctrine from Speaker of the National Assembly v Karume and Benard Murage, noting that where a clear statutory procedure exists it must be followed before invoking constitutional jurisdiction. Since the petitioner had raised the totality of his claims in the counterclaim in ELCC No. 181 of 2020, determining the suit would effectively determine the petition, leaving no further purpose for the petition.

p. 8
02

Whether the suit land in Kaloleni Case No. 10 of 1979 became plot No. 218 after adjudication

Holding

No. Nothing in the adjudication committee proceedings showed the 1979 case land was adjudicated as plot No. 218, and plot No. 218 did not give birth to the other plots

Reasoning

The court reviewed the adjudication committee hearings and found nothing connecting the 1979 suit land to plot No. 218, which explains why the Land Adjudication Officer could not state who owned plot No. 218. The failure to produce the adjudication register left ownership of several parcels unresolved, and claims over unpleaded plots were ignored.

p. 10
03

Who owns plot No. 221 and whether eviction should issue

Holding

Plot No. 221 belongs to the deceased 3rd respondent, whose title is affirmed by the Minister's decision in appeal No. 1 of 2009 reversing appeal No. 69 of 2007; no orders can issue against his estate as it is not a party

Reasoning

The court found the verdict in appeal No. 69 of 2007 had been reversed only to the extent of plot No. 221 by appeal No. 1 of 2009 before a different chairman, and the Land Adjudication Officer's confusion over the verdict pages was a serious anomaly. The deceased secured title after winning appeal No. 1 of 2009, and since his estate is not a party, no orders can issue against it.

p. 10
04

How to resolve ownership of plot No. 220 and a portion of plot No. 218 absent evidence

Holding

The court, on its own motion, referred the ownership and boundary disputes to the Land Registrar, Kilifi under sections 18 and 19 of the Land Registration Act, based on the official adjudication register

Reasoning

No party produced documents of title or the adjudication register showing ownership of plot No. 220 and the portion of plot No. 218, leaving the court to speculation, which would not do justice. Invoking the overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(c) and (d) of the Constitution, the court referred ownership determination and boundary demarcation to the Land Registrar with reports due in 90 days.

p. 11

Legal principles established

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  • A petitioner in a constitutional petition must plead with precision the rights violated and the manner of violation
  • Where an alternative statutory remedy exists, it must be pursued before invoking constitutional jurisdiction
  • The decision of the Minister on an adjudication appeal is final under section 29(1) of the Land Adjudication Act
  • Proprietorship rights under section 25 of the Land Registration Act are indefeasible subject to the statutory exceptions

Court orders

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  1. 1.The petitioner's claim in ELCPET No. 4 of 2020 is dismissed for failure to establish it to the standard required by law
  2. 2.The plaintiff's suit and the counterclaim in ELCC No. 181 of 2020 are both dismissed for failure to prove their respective claims on a balance of probabilities
  3. 3.Each party to bear their own costs in both ELCPET No. 4 of 2020 and ELCC No. 181 of 2020
  4. 4.The parties' dispute over ownership of plot No. 220 and a portion of plot No. 218 be determined by the Land Registrar, Kilifi, based on the Adjudication Register for Mwawesi Adjudication Section, with a report filed with the court within 90 days
  5. 5.The Land Registrar, Kilifi to conduct a boundary dispute resolution hearing in respect of plot No. 220 and reposition/fix the boundaries between the plaintiff and the 1st defendant, filing a report within 90 days
  6. 6.The Land Registrar, Kilifi to conduct a boundary dispute resolution hearing between the plaintiff and the 2nd defendant over plot No. 218 and reposition/fix the boundaries, filing a report within 90 days
  7. 7.The parties to each plot to share the applicable fees payable to the Land Registrar equally
  8. 8.Each party to bear their own costs in respect of the hearings before the Land Registrar

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 19, 20, 21, 22, 23, 25(c), 27, 40, 47, 50, 60(1)(b) & (g), 61(2), 64, 159(2)(c) & (d), 165, 262 and section 19 of the 6th Schedule
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 4
  • Land Registration Act, Chapter 300, Laws of KenyaSections 18, 19, 25, 28
  • Land Adjudication Act, Chapter 284, Laws of KenyaSections 5, 21(3) & (4), 22, 29, 29(1)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 1A, 1B, 3A, 27

Cases cited (4)

  • Anarita Karimi Njeru Versus The Republic of Kenya
    (1976-1980) KLR 1272
  • Benard Murage versus Fine Serve Africa Limited & 3 others
    [2015] eKLR
  • Speaker of the National Assembly versus James Njenga Karume
    [1992] eKLR
  • Kivuva versus Kivuva & 2 others
    [2025] KEELC 779 (KLR)
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya (petition) and original civil jurisdiction over land disputes under the Land Registration Act and Land Adjudication Act (suit)

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, "Kadzinga & another v Cabinet Secretary for Land, Housing & Urban Development & 6 others; Kadzinga (Plaintiff to the Counterclaim); Mwanduka & 5 others (Defendant to the Counterclaim) (Environment & Land Petition 4 of 2020 & Environment & Land Case 181 of 2020 (Consolidated)) [2025] KEELC 1020 (KLR)", Case Analysis (2025). ELCPET No. 4 of 2020 (consolidated with ELCC No. 181 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1020/eng@2025-03-05

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