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ELCDismissedPetition dated 6th October 2021· [2025] KEELC 1122 (KLR)

Jara & another v Wanje & 9 others (Petition 25 of 2021) [2025] KEELC 1122 (KLR)

Environment and Land Court
5 March 2025
EME. K. Makori
2,356 words in judgment
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The bottom line

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The Environment and Land Court in Malindi dismissed a landowner's challenge to neighbouring titles as too late, confirming that old land disputes can be time-barred even when framed as constitutional claims.

What this practically means

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Executive summary

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The Petitioners, registered owners of Plot No. 410 Malindi since 1991, sought a declaration that the plot had been overlapped by approximately 4.35 Ha by adjacent Chembe/Kibabamshe plots (Nos. 19, 20, 21, 22, 1296, 1297 and 1298), and prerogative orders of mandamus and certiorari compelling the land registrar and chief lands registrar to resurvey, rectify the registry index map, quash the existing titles and re-issue title deeds reflecting correct measurements. They relied on a 2014 boundary verification by the District Surveyor Malindi which found the overlap and recommended resurvey, arguing that Plot 410, registered in 1936 under the Registration of Titles Act with fixed boundaries, was superior to the general-boundary RLA plots registered in 1978, and that the overlap violated their property rights under Article 40. The 1st to 7th Respondents filed no response; the State Respondents filed Grounds of Opposition contending the plot was established in 1936 with no squatter settlement. Only the Petitioners filed submissions. Framing the issues around whether the reliefs could be granted and costs, the court held the demand stale: Plot 410 dated to 1936 and the adjacent registration section to 1978, yet the Petitioners complained only after the 2013–2014 boundary processes. Applying the Supreme Court's decision in Janmohammed, the court held that limitation under Section 7 of the Limitation of Actions Act, justified by Article 24, applies despite the constitutional framing, and that claims under the Land Adjudication Act must follow its own procedure for questioning titles. The Petition was dismissed with costs.

Key legal issues

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01

Whether a claim to rectify boundaries and titles created 85 and 43 years earlier can be brought by way of constitutional petition

Holding

No – the claim is stale and time-barred

Reasoning

The court reasoned that Plot No. 410 Malindi was established in 1936 under the RTA and the adjacent Chembe/Kibabamshe plots in 1978 under the RLA. The Petitioners bought the land in 1991 and made no complaint until the boundary process of 2013–2014. No explanation was offered for the delay by the original owner or the Petitioners. Applying the Supreme Court's guidance in Janmohammed, the inordinate delay was not justified under Article 24 and the claim fails as time-barred.

p. 4
02

Whether claims under the Land Adjudication Act can be pursued via a constitutional petition

Holding

No – the Act provides an elaborate procedure for questioning titles created under the adjudication regime

Reasoning

The court noted that the Petition hinges on claims within the Chembe/Kibabamshe Adjudication Section. That statutory regime itself prescribes the procedure for questioning titles created through adjudication, and a constitutional petition cannot bypass it. Together with limitation, this rendered the constitutional route inappropriate.

p. 5

Legal principles established

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  • Constitutional petitions founded on violation of fundamental rights are generally not subject to limitation of actions, but the principle is not absolute and is applied case by case having regard to the nature of the right, delay and mischief
  • A constitutional petition does not automatically oust the Limitation of Actions Act; Article 24 permits limitation of rights by law

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents
Jurisdiction invoked
Articles 40(3), 22 and 24 of the Constitution of Kenya 2010; Land Registration Act 2012

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, "Jara & another v Wanje & 9 others (Petition 25 of 2021) [2025] KEELC 1122 (KLR)", Case Analysis (2025). Petition dated 6th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1122/eng@2025-03-05

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