Ragen & another v Director(s) of Ack Primary School & 9 others (Environment & Land Petition E003 of 2023) [2025] KEELC 1486 (KLR)
The bottom line
#The Mombasa Environment and Land Court upheld a school's land title but sent the disputed allocation letter to the DCI for criminal investigation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit property is public or private land.
- 2.Whether the 1st respondent/cross-petitioner title to the suit property was lawfully and regularly obtained.
- 3.What reliefs to issue in the petition and cross-petition, if any.
- 4.Who bears the costs?
Key legal issues
#Whether the suit property is public or private land
Though initially public land within the settlement scheme, it became private land upon issuance of a freehold title to the 1st respondent/cross-petitioner on 27th December 2006.
The only title document is the freehold title issued to Church Commissioners of Kenya under the (repealed) Registered Land Act. The court took judicial notice that Church Commissioners is trustee of ACK assets. The 28th February 2007 letter describing the plot as public utility was disputed, its author deceased, but the court held it a public document, authentic under statutory presumption, which cannot be revoked capriciously by informal statements. The petitioner failed to prove the plot remained public utility land.
Validity of the letter dated 28th February 2007 placing a caveat/reservation on the suit property
The letter is a public document deemed authentic under section 66 of the Evidence Act and cannot be revoked capriciously by statements made otherwise than through formal action; the officer who denounced it condemned its author unheard.
The author, Mr Kiteto, had passed on and could not defend its contents. DW2's mere testimony that it was erroneous could not override a public document. The accountabilities list used to prepare the area list was never availed. Given the officer's inconsistent positions across cases, the court found the letter's legality needed investigation beyond the courtroom and referred it to the DCI.
Whether the cross-petitioner's right to property under Article 40 was violated
The cross-petition was prematurely filed; the encroachment complaint should have been pursued through the statutory boundary dispute process under section 18(3) of the Land Registration Act, and was struck out for offending the exhaustion doctrine.
The cross-petitioner proved some encroachment by the 2nd respondent in the cross-petition, but the filing of the petition by the petitioner was not an actionable infringement. Superior courts require exhaustion of statutory alternative remedies before constitutional litigation. The proper avenue was boundary dispute resolution through the County Land Registrar.
Whether the suit property was carved out of plot 337 belonging to Nassir Swaleh
DW4 failed to prove the claim that the suit property was carved out of his plot 337 or that the cross-petitioner conspired with a surveyor to move beacons onto his land.
Under section 109 of the Evidence Act, he who alleges must prove. DW4 did not pursue the claim in testimony, provided unclear title documents and deed plan, and never produced a survey report despite alleging beacons were moved in 2010. The structures were found by the court to be matters for allottees to confine within their plots or face actionable trespass.
Legal principles established
#- A constitutional petition must specify with particularity the right violated and give particulars thereof.
- A certificate of title is sacrosanct and any party claiming ownership of land must possess it.
- He who alleges must prove, under section 109 of the Evidence Act.
- Parties should exhaust statutory alternative remedies before filing constitutional petitions; a boundary encroachment claim must first go through the County Land Registrar under section 18(3) of the Land Registration Act.
Court orders
#- 1.The petitioner's amended petition dismissed, the petitioner having failed to establish his claim.
- 2.The cross-petition struck out, the cross-petitioner having failed to establish its claim.
- 3.On the court's own motion, the DCI, with the assistance of the National Director of Land Adjudication and Settlement Office, directed to investigate the number and identity of public utility plots in Mwembelegeza Settlement Scheme and the legality of the letter dated 28th February 2007, and to initiate legal action if evidence of criminal activities is detected in the alienation of those public utility plots.
- 4.Each party to bear their own costs in the petition and cross-petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Articles 62(4), 40, 43(1)(f), 35(1), 67(2)) - original petition jurisdiction of the Environment and Land Court
Relief refused
#All declarations and orders sought in the amended petition, including annulling the allocation and title of the suit property, permanent injunction, demolition, demarcation and access to information orders
The petitioner failed to establish that the suit property was public land reserved for a school; the only title was the freehold title issued to the 1st respondent, and the 2007 letter was disputed while its author was unavailable.
All declarations and injunctions sought in the cross-petition, including declarations of private ownership and boundaries and prohibitory/mandatory injunctions
The cross-petitioner failed to prove violation of its right to property; the encroachment complaint was premature and should have gone through the statutory boundary dispute mechanism.
Punitive costs sought by the cross-petitioner
The court directed each party to bear their own costs as the petition was commenced in the public interest.
Costs
Each party to bear their own costs in the petition and cross-petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the petitioner has failed to establish his claim in the amended petition and it is dismissed.
The cross-petitioner has failed to establish its claim and hereby struck out.
The court on its own motion directs the DCI, with the assistance of the National Director of Land Adjudication and Settlement Ofice, to investigate establish the number and identity of the public utility plots that were set aside in Mwembelegeza Settlement Scheme
Each party to bear their own costs in the petition and cross-petition.
Though the land was initially public land being part of Mwembelegeza Settlement Scheme, it became private land upon issuance of a freehold title with nil encumbrances in favour of the 1st respondent/cross-petitioner.
The cross-petition was therefore filed prematurely and should be struck out, for offending the doctrine of exhaustion.
Issues in the judgment
#The judgment inconsistently identifies the witnesses: DW2 is described as 'the County Land Adjudication and Settlement Oficer' while DW1 is described as secretary to the planning committee, though earlier DW1 (Benjo Kibet) was the County Land Adjudication and Settlement Officer and DW2 (Meshack Mwalukuku) was secretary to the planning committee.
The judgment records DW1's name inconsistently as 'Benjo Kibet' and 'Benjo Kibet Daniel', and earlier as 'Daniel Benjo Kibet'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ragen & another v Director(s) of Ack Primary School & 9 others (Environment & Land Petition E003 of 2023) [2025] KEELC 1486 (KLR)", Case Analysis (2025). Petition dated 30th January 2023, as amended on 24th February 2023 (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1486/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.