Wanje & 2 others (Suing as Officials of Matolani Residents Development Association) v County Government of Kilifi & 6 others (Constitutional Petition E009 of 2024) [2025] KEELC 4333 (KLR)
The bottom line
#The Environment and Land Court in Malindi ruled that community land activists can challenge historical land allocations directly in court, without exhausting old colonial-era procedures or facing time limits.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is a disguised compensation claim belonging before the District Commissioner, Provincial Agricultural Board and Magistrate's Court under the Trust Land Act
It is not; the petition contains no pleading or prayer for compensation, so the statutory appeal mechanism is inapplicable and grounds 1-3 fail.
The court perused the petition and found its grievance was the alleged absence of setting apart and the nullity of allocations, not compensation. Without a pleading or prayer for compensation, the progressive District Commissioner/Board/Magistrate's Court sequence under the Trust Land Act cannot be triggered, and the ELC is competent to hear the matter directly.
Whether failure to resort to Section 12 of the Trust Land Act defeats the petition
No; Section 12 presupposes land 'set apart', and a claim that there was no setting apart cannot be channelled under it, especially post-2010 and after the Act's repeal.
Section 12 gave High Court access for (a) legality of setting apart and (b) compensation, both premised on a setting apart. Here the petitioners deny any setting apart, so the section does not apply. In any event the Act is repealed, trust lands were reclassified (community land under the Community Land Act), and the ELC now has original jurisdiction over land matters.
Whether the petition is statute barred
No; statutory limitation periods do not apply to constitutional petitions, and delay must be assessed on factual considerations unsuitable for a preliminary objection.
Limitation derives from statute, which is subordinate to the Constitution, and no constitutional provision imposes a filing period. The 30-day appeal window in the Trust Land Act and the Law Reform Act timelines cannot diffuse into a constitutional dispute. Whether there is inordinate delay depends on reasons for delay and case-by-case factors requiring evidence, not a preliminary objection.
Whether the use of the word 'quashing' imports the judicial review remedy of certiorari subject to a 6-month limit
No; remedies in a constitutional petition, including judicial review orders, flow from Article 23, and the objection fails.
The court declined to attach importance to the objectors' equation of 'quashing' with certiorari. Under Article 23(3)(f) the court may grant judicial review orders in a constitutional petition, and the remedies exceed those listed, so the statutory timelines for judicial review do not defeat the petition.
Legal principles established
#- A court lacks jurisdiction where a petition pleads no claim for compensation and seeks no prayer for compensation; the statutory compensation appeal mechanism cannot be invoked against a claim that there was no setting apart.
- Where a party's claim is that there was no setting apart, Section 12 of the Trust Land Act cannot divest the ELC of jurisdiction, particularly after the Act's repeal and in the post-2010 constitutional era.
- Statutory limitation periods do not govern the filing of constitutional petitions enforcing fundamental rights; delay is assessed case by case on the facts.
Court orders
#- 1.The preliminary objection dated 21st February 2025 is dismissed
- 2.Costs of the preliminary objection to the petitioners
- 3.Petition to be mentioned on 26/6/2025 for directions as to hearing
- Jurisdiction invoked
- Article 162 of the Constitution and Section 13 of the ELC Act (with Article 23 remedies)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanje & 2 others (Suing as Officials of Matolani Residents Development Association) v County Government of Kilifi & 6 others (Constitutional Petition E009 of 2024) [2025] KEELC 4333 (KLR)", Case Analysis (2025). Not stated in extract (Petition dated 5th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4333/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.