Mutua & 5 others v Mtua & 5 others (Environment and Land Petition E004 of 2024) [2025] KEELC 5118 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed squatters' bid to claim land ownership by petition, ruling adverse possession must follow a specific legal procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru threshold of precision
It did not; the petitioners failed to articulate with precision which constitutional rights were threatened, denied or violated and by whom.
The court applied the Anarita Karimi Njeru test as reaffirmed in Mumo Matemu. The petitioners, who asserted occupation of over fifty years and claimed adverse possession, did not show how the respondents individually or collectively infringed their constitutional rights. The enforcement notice was addressed to a third party, Edwin Murangiri, and the 2nd respondent asserted the land was fenced with no squatters.
Whether adverse possession can be claimed by constitutional petition
No; adverse possession claims must be brought by originating summons under section 38 of the Limitation of Actions Act read with Order 37 Rules 1 and 7 of the Civil Procedure Rules.
The court held that adverse possession is a land-ownership dispute grounded in the Limitation of Actions Act requiring 12 years of open, continuous and peaceful occupation, and is governed by a statutory procedural framework, not the Constitution. Precedent holds such claims incompetent as petitions. Adverse possession applies only to registered land, and the applicant must identify the exact title.
Whether the constitutional avoidance doctrine barred the petition
Yes; alternative statutory remedies existed - originating summons for adverse possession and appeal to the County Physical and Land Use Planning Liaison Committee for the enforcement notice under section 72(3)(4) of PLUPA.
The court held that where a statute provides a procedure for resolving grievances, strict adherence is mandatory before constitutional redress. For the enforcement notice, the petitioners should have appealed to the Liaison Committee and thereafter to the ELC on matters of law; for adverse possession, an originating summons. Constitutional relief was premature and unnecessary.
Legal principles established
#- A claim of adverse possession cannot be brought as a constitutional petition; it must be pursued by originating summons under the Limitation of Actions Act and Order 37 of the Civil Procedure Rules.
- Where a statute provides a procedure for resolving grievances, that procedure must be strictly followed before resort to constitutional redress - the doctrine of constitutional avoidance.
- A party seeking constitutional redress must set out with reasonable precision the complaint, the provisions infringed, and the manner of infringement (Anarita Karimi Njeru test).
Court orders
#- 1.The petition is dismissed
- 2.Costs awarded to the respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 (bill of rights enforcement jurisdiction); Limitation of Actions Act (Cap 22); Physical and Land Use Planning Act (PLUPA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua & 5 others v Mtua & 5 others (Environment and Land Petition E004 of 2024) [2025] KEELC 5118 (KLR)", Case Analysis (2025). not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5118/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.