Mwamwero v Njuna & 2 others (Environment and Land Case E043 of 2023) [2025] KEELC 5250 (KLR)

The claim was anchored on the tort of fraud, illegality and misrepresentation said to have occurred in 1999 when the title issued to the 1st Defendant. Section 3(1) of the Public Authorities Limitation Act requires tort claims against Government to be filed within 12 months, and section 6 read with section 4(2) of the Limitation of Actions Act confirms the 12-month regime applies. Filing after 24 years offended the statute, and limitation goes to jurisdiction, warranting striking out the claim against the 2nd and 3rd Defendants.

The court traced the doctrine of exhaustion to Article 159(2)(c) of the Constitution and the Ramogi decision, including the Speaker v Karume principle that prescribed procedures must be strictly followed and the recognised exceptions. Because the core grievance was allegations of obtaining land by fraud by the 1st Defendant, the court considered itself competent to determine the suit to completion despite the defendants' objection under sections 79(2) and 80 of the Land Registration Act.

The court set out the statutory procedure for disposition of government land under the repealed Government Lands Act and the case law that an allotment letter is a mere invitation to treat. The plaintiff's only documentary proof was a letter of allotment in the name of one Dzame, with time-bound conditions overleaf which she did not fulfil, and she could not explain how she became the allottee. Dispositions in land must be in writing under section 3(1) of the Law of Contract Act and section 38(1) of the Land Act, and she failed to discharge the burden of proving proprietary rights.

Under the proviso to section 27(1) of the Civil Procedure Act costs follow the event, and the authorities confirm the successful party is entitled to costs absent compelling reasons. As the plaintiff did not prove her claim against the 2nd and 3rd Defendants, they received costs, while the non-participating 1st Defendant got none.