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ELCStruck OutPetition dated 10th May 2023· [2025] KEELC 3358 (KLR)

Kimani v Mugan, Chief Githurai 44 Location & 8 others (Petition E021 of 2023) [2025] KEELC 3358 (KLR)

Environment and Land Court
23 April 2025
6,554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a landowner's constitutional petition, ruling trespass and boundary disputes must go through statutory processes first.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of L.R. No. Nairobi/Block 119/3513, petitioned the Environment and Land Court claiming that on 27th April 2023 and again on 8th May 2023 the 1st to 6th Respondents, allegedly with other unknown persons and the Deputy County Commissioner Kasarani, entered his property and demolished buildings and structures. He sought a permanent injunction, declarations of trespass and constitutional violation, orders for investigation and prosecution of the Respondents, special, compensatory, general and exemplary damages, and costs. The 5th and 6th Respondents replied that the disputed portion was riparian reserve, not part of the suit property, which the Petitioner had annexed, sub-divided and rented out, causing flooding; the demolition was attributed to aggrieved young men. The 1st, 2nd, 3rd, 4th, 7th, 8th and 9th Respondents did not respond. The court framed three issues: whether a constitutional petition was warranted, whether the doctrine of exhaustion/constitutional avoidance barred the Petition, and what reliefs could issue. Holding trespass to be a private law claim to be brought by plaint, and noting the boundary dispute required demarcation by the Land Registrar under Sections 18 and 19 of the Land Registration Act and the riparian extent required determination by the Water Resources Authority under the Water Act 2016, the court found the Petition premature and barred by exhaustion and constitutional avoidance. The Petition was struck out with costs to the 5th and 6th Respondents only.

Key legal issues

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01

Whether the Petition disclosed constitutional violations warranting a constitutional petition

Holding

The claim was one of trespass to land, a private law cause of action that ought to have been brought by plaint

Reasoning

The court found the cause of action to be trespass, underpinned by Section 3 of the Trespass Act Cap 294, and held the disputes had been dressed as constitutional issues when they belonged to private law. Deploying a constitutional petition in such circumstances amounts to trivialising the Constitution; recompense should have been sought under ordinary statutory remedies.

p. 6
02

Whether the doctrine of exhaustion and constitutional avoidance barred the Petition

Holding

Yes; the boundary dispute required determination under Sections 18 and 19 of the Land Registration Act and the riparian reserve dispute required referral to the Water Resources Authority under the Water Act 2016 before any trespass claim

Reasoning

The court held that the extent of the riparian reserve had to be ascertained first by the designated statutory mechanisms, namely demarcation by the Land Registrar at the locus in quo and determination by the Water Resources Authority. Only thereafter could the Petitioner raise claims of trespass. The Petition was therefore premature.

p. 12
03

What reliefs, if any, ought to issue

Holding

None; all reliefs were premature, misconceived and legally untenable, and the Petition was struck out

Reasoning

Because the boundary and riparian extent had not been statutorily determined, the declarations and damages sought were premature. The criminal prosecution relief lay with the Inspector General and DPP. The court therefore struck out the Petition and awarded costs to the 5th and 6th Respondents only.

p. 13

Legal principles established

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  • Trespass to land is a private law claim to be pursued by ordinary civil process, not by constitutional petition
  • The court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with the Land Registration Act
  • Disputes concerning the extent of a riparian reserve must first be referred to the Water Resources Authority before claims of trespass are entertained
  • Constitutional petitions must not be used to trivialise the Constitution where private law remedies suffice

Court orders

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  1. 1.The Petition be and is hereby struck out
  2. 2.Costs of the Petition be and are hereby awarded to the 5th and 6th Respondents only
  3. 3.The costs shall be agreed upon and in default taxed in the conventional manner
Jurisdiction invoked
Constitutional petition invoking the Bill of Rights (human rights and fundamental freedoms) before the Environment and Land Court; no specific article stated as the basis of the court's 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, "Kimani v Mugan, Chief Githurai 44 Location & 8 others (Petition E021 of 2023) [2025] KEELC 3358 (KLR)", Case Analysis (2025). Petition dated 10th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3358/eng@2025-04-23

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