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ELCDismissedConstitutional Petition No E009 of 2024· [2025] KEELC 4744 (KLR)

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 4744 (KLR)

Environment and Land Court
26 June 2025
3,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Malindi confirmed it can hear claims that trust land was never lawfully set apart, and no fixed time limit blocks such constitutional petitions.

What this practically means

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Executive summary

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The 2nd and 4th Respondents raised a preliminary objection against a constitutional petition in which the Petitioners claim that LR No 20254-Kilifi and LR No 29690-Kilifi, their ancestral trust land, were arbitrarily allocated and leased to the objectors in 1994 and 2013 without any lawful setting apart, compensation, or public purpose, and seek declarations of nullity, cancellation of registrations and restoration. The objectors argued the Petitioners should have pursued the Trust Land Act compensation machinery (District Commissioner, Provincial Agricultural Board, Magistrate's Court, High Court), failed to invoke Section 12 of that Act, and were out of time. The court framed two issues: jurisdiction and limitation. On jurisdiction, it found the petition pleads and seeks no compensation, but challenges the very existence of a setting apart; such a claim was never within the District Commissioner's mandate, and Section 12 of the (repealed) Trust Land Act applies only to land set apart. In the post-2010 era the ELC has original jurisdiction over land disputes, and the Community Land Act's dispute provisions complicate any referral. On limitation, no constitutional period applies; statutory appeal windows and judicial review timelines cannot be imported into a constitutional petition, and inordinate delay is a factual, case-by-case inquiry unsuitable for a preliminary objection. The 'quashing' language did not convert the petition into a time-barred certiorari application, since Article 23(3) provides for 'appropriate relief'. The entire preliminary objection was dismissed with costs to the petitioners, and the petition was directed to be mentioned on 22 November 2025 for hearing directions.

Key legal issues

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01

Whether the petition was a disguised compensation claim triable only through the Trust Land Act compensation machinery (District Commissioner, Provincial Agricultural Board, Magistrate's Court, High Court)

Holding

No - the petition contains no pleading or prayer for compensation; it is a claim that no setting apart occurred at all

Reasoning

The court examined the petition and found no pleading or prayer for compensation. The dispute is whether the suit lands were ever set apart in accordance with law, so the statutory appeal route for compensation assessment disputes was inapplicable and grounds 1-3 of the objection failed.

p. 5
02

Whether Section 12 of the Trust Land Act required the petitioners to first go to the High Court

Holding

No - the claim is that there was no setting apart, so Section 12 ('land set apart') does not apply; and the ELC now has original jurisdiction over such land questions post-2010

Reasoning

Section 12 applies to land set apart under the Act; the petitioners contend no setting apart occurred, so that provision is inapplicable. In the post-2010 constitutional era the ELC is the forum with original jurisdiction over land matters, and the Trust Land Act has been repealed, with community land disputes now governed by the Community Land Act.

p. 5
03

Whether the petition is time barred

Holding

No - no constitutional provision prescribes a limitation period; statutory time frames do not apply to constitutional petitions, and inordinate delay is a factual question unsuitable for determination by preliminary objection

Reasoning

The court held statutes rank below the Constitution and no constitutional provision fixed a time limit. Reliance on the Trust Land Act's 30-day appeal window and judicial review timelines infused the objection with false vigour; delay in constitutional petitions is assessed case-by-case on substantive factors that cannot be resolved on a preliminary objection.

p. 6
04

Whether the 'quashing' language rendered the petition a time-barred certiorari application

Holding

No - remedies in a constitutional petition flow from Article 23, including 'appropriate relief' beyond those enumerated

Reasoning

The court refused to equate the word 'quashing' with certiorari subject to the judicial review limitation period. Article 23(3) permits 'appropriate relief' including orders of judicial review, and the remedies available exceed those listed, so the objection on this ground failed.

p. 7

Legal principles established

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  • Where the claim is that there was no setting apart of trust land, the ELC, not the District Commissioner or High Court under the repealed Trust Land Act, has original jurisdiction to inquire into that issue
  • Limitation periods under statutes such as the Limitation of Actions Act do not apply to enforcement of fundamental rights unless the Constitution expressly so provides; inordinate delay is assessed on the facts, not by fixed statutory timelines
  • Remedies in a constitutional petition, including judicial review orders, flow from Article 23 of the Constitution

Court orders

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  1. 1.All limbs of the preliminary objection dated 21st February 2025 dismissed with costs to the petitioners
  2. 2.Petition to be mentioned on 22/11/2025 for directions as to hearing

Authorities

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Legislation

  • Trust Land Act Cap 288Sections 7, 8, 9, 10, 11, 12, 13(1)(c), 13(2), 13(3), 13(4)
  • Constitution of Kenya (repealed)Section 117(1)(c)
  • Constitution of Kenya 2010Articles 23(3)(f), 24, 162
  • Environment and Land Court ActSection 13
  • Community Land ActSections 37-42 (Part VIII)
  • Law Reform ActNot specified
  • Limitation of Actions ActNot specified

Cases cited (4)

  • Jacob Ogola Ondige v the Commissioner of Lands and Others
    Kisumu - ELC 823 of 2016
  • Republic v County Council of Kwale & Another Ex parte Kondo & 57 Others
    [1998] 1 KLR
  • James Kanyita Nderitu v A.G and Another
    Petition No. 180 of 2011 (HC)
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
Jurisdiction invoked
Article 162 of the Constitution of Kenya 2010 and Section 13 of the ELC Act; Article 23(3) (appropriate relief)

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, "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 4744 (KLR)", Case Analysis (2025). Constitutional Petition No E009 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4744/eng@2025-06-26

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