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ELCDismissedPetition dated 10th May 2019· [2025] KEELC 5606 (KLR)

Masenke & 116 others v National Land Commission & 4 others (Environment and Land Petition 18 of 2017) [2025] KEELC 5606 (KLR)

Environment and Land Court
Invalid Date
3,526 words in judgment
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The bottom line

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A Kenyan court dismissed 117 community members' land claim because they skipped the legal objection and appeal steps available during land adjudication.

What this practically means

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Executive summary

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The Petition, filed by James Sankale Ole Masenke and 116 others of the Keekonyokie Maasai community, alleged that they were allocated land in the Sintakara Adjudication Section between 1968 and 1972, were violently displaced during the 1993 Enoosupukia tribal clashes, and were then unlawfully excluded from the 2009 adjudication, which they said was marred by fraud, nepotism and self-allocation. They sought cancellation of the 2009 titles, reinstatement, compensation and redress for violations of Articles 27, 28, 29 and 40 of the Constitution. The Respondents maintained that the land was only declared an adjudication section on 14th October 2009 by Gazette Notice, that the 2009 process complied with the Land Adjudication Act including public barazas, publication of the register and 1,288 objections, and that the Petitioners never filed claims, objections or appeals under Sections 26 and 29. Kullow J framed four issues and held, first, that the Petitioners proved no legal or equitable interest predating 2009, since no gazettement or register existed earlier and Section 23 of the Act recognises only interests recorded in the adjudication register. Second, the 2009 adjudication was lawful and procedurally fair, and the Petitioners' failure to exhaust statutory remedies was fatal. Third, fraud allegations were neither specifically pleaded nor strictly proved, and no Article 27, 28, 29 or 40 violations were proved. Fourth, no remedies were available: title cancellation would affect non-joined third parties, fresh adjudication could not be ordered absent proved illegality, and compensation lacked proof of loss. The Petition was dismissed in its entirety with each party bearing their own costs.

Key legal issues

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01

Prior legal or equitable interest in the Sintakara Adjudication Section

Holding

The Petitioners proved no legally cognizable or equitable interest predating the 2009 adjudication.

Reasoning

No gazettement of any adjudication section before 14th October 2009 was produced; the 1972 committee related to Nairagie Enkare, a legally distinct area. Under Sections 13-20 and 23 of the Land Adjudication Act, interests must be formally demarcated, adjudicated and recorded in the register. The Petitioners identified no parcels, produced no register entries, and had been absent for over a decade, undermining claims of continuity.

p. 4
02

Lawfulness of the 2009 adjudication process

Holding

The 2009 adjudication complied with the Land Adjudication Act and afforded procedural safeguards; exclusion resulted from the Petitioners' own failure to use statutory channels.

Reasoning

The section was gazetted under Section 5, a public baraza was held, the register was published under Section 25, 1,288 objections were heard under Section 26(1), and Section 29 appeals to the Minister were available. Only PW1 filed an objection and he conceded he did not appeal. Fraud allegations were never reported to the EACC or police nor the subject of judicial review, and were not specifically pleaded or strictly proved.

p. 5
03

Alleged violations of Articles 27, 28, 29 and 40

Holding

No violations were proved on a balance of probabilities.

Reasoning

Article 40 protection requires a proven legal or beneficial interest, and Article 40(6) excludes unlawfully acquired property. No differential treatment, comparator or unjustified discrimination was shown under Article 27, and no state conduct demeaning dignity or amounting to degrading treatment was proved under Articles 28 and 29. Violations were also not pleaded with the reasonable precision required by Anarita Karimi Njeru and Mumo Matemu.

p. 7

Legal principles established

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  • An area must be declared an adjudication section by Gazette Notice under Section 5(1) of the Land Adjudication Act before lawful adjudication can commence, and no interest in land is legally recognised unless recorded in the adjudication register (Section 23).
  • Where a statute provides a dispute resolution mechanism, that procedure must be exhausted before invoking constitutional jurisdiction.
  • Fraud must be specifically pleaded and strictly proved.

Court orders

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  1. 1.The Petition dated 10th May 2019 is dismissed in its entirety.
  2. 2.Each party shall bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 27, 28, 29, 40, 40(1), 40(6)
  • Land Adjudication Act (Cap. 284)Sections 5, 5(1), 13 to 20, 23, 25, 26(1), 26, 29
  • Evidence ActSections 107, 108, 109

Cases cited (7)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • John Harun Mwau v Peter Gastrol & 3 others
    [2014] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR (Civil Appeal No 132 of 2005)
  • Barclays Bank of Kenya LTD & Another v Gladys Muthoni & 20 others
    [2018] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Kariuki v Karanja & another
    [1986] KLR 556
Jurisdiction invoked
Article 23 of the Constitution (claims of violation of rights under Articles 27, 28, 29 and 40); Land Adjudication Act (Cap. 284)

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, "Masenke & 116 others v National Land Commission & 4 others (Environment and Land Petition 18 of 2017) [2025] KEELC 5606 (KLR)", Case Analysis (). Petition dated 10th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5606/eng@2025-07-25

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