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ELCDismissedPetition dated 19th July 2024 (Kilgoris ELC)· [2025] KEELC 5627 (KLR)

Basi v Land Registrar Transmara West, East and South & another; Yasi & 3 others (Interested Parties) (Environment and Land Petition E007 of 2024) [2025] KEELC 5627 (KLR)

Environment and Land Court
30 July 2025
MMM.N. Mwanyale
2,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot be asked to overturn another court's ruling through a fresh constitutional petition — the remedy is to appeal.

What this practically means

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Executive summary

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The petitioner, the registered owner of Transmara/Ololchani/124, petitioned the ELC at Kilgoris seeking a declaration that a boundary identification report by the Land Registrar was unlawful and null and void, and an order of mandamus compelling a fresh boundary identification. He contended the Registrar never visited the site despite summons, breaching his rights to property, fair administrative action and legitimate expectation, and that the interested parties had acquired approximately 30 hectares of his land. The 1st Respondent maintained the report followed court orders issued in Kilgoris ELC No. 36/2021, while the interested parties argued the petition was res judicata and an abuse of process. The court, raising jurisdiction suo motu, held that the boundary report had been considered and formed part of the judgment in Kilgoris ELC No. 36/2021, and relying on the Supreme Court decisions in Karisa Chengo and Kenya Hotel Properties, concluded that a court of equal status cannot reopen or review a peer court's decision; the petitioner's remedy was appeal. The court found the ELC lacked jurisdiction over the petition, that it was an abuse of process, and dismissed it with costs to the Respondents and Interested Parties. As a consequential order, the court directed removal of restrictions registered by the 1st Respondent over Transmara/Ololchani/1673, which had been reserved pending this petition's outcome.

Key legal issues

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01

Whether the ELC has jurisdiction over a constitutional petition seeking to reopen a boundary determination made as part of a judgment of a concurrent court

Holding

The court lacks jurisdiction; the petition effectively seeks review of a decision of a court of equal jurisdiction and amounts to an abuse of process.

Reasoning

Relying on the Supreme Court's Karisa Chengo decision, the ELC has jurisdiction to hear constitutional petitions within its specialized jurisdiction. However, the Kenya Hotel Properties decision establishes that superior courts cannot reopen or review decisions of peers of equal jurisdiction. The boundary report relied upon in the petition formed part of the Kilgoris ELC No. 36/2021 judgment, so the Petitioner's remedy was appeal, not a fresh petition.

p. 6
02

Whether the petition should be struck out or dismissed

Holding

Although the petition ought to be struck out, since it is an abuse of court process it was dismissed with costs.

Reasoning

The court found that the petition lacked jurisdiction because it sought to relitigate matters already determined in Kilgoris ELC No. 36/2021. Finding it an abuse of process, the court chose dismissal rather than striking out, and awarded costs to the Respondents and Interested Parties.

p. 6
03

Consequential order regarding restriction over Transmara/Ololchani/1673

Holding

With the petition dismissed, the restriction placed over Transmara/Ololchani/1673 is removed.

Reasoning

The court had reserved decision on the removal of a restriction registered over the title pending the outcome of the petition. Having dismissed the petition, the court found no basis for the restriction to remain in force and ordered its removal.

p. 6

Legal principles established

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  • Every court has a duty to determine its own jurisdiction.
  • A superior court cannot grant orders to reopen or review decisions of peers of equal and competent jurisdiction; dissatisfaction with such a decision lies in appeal.

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents and the Interested Parties
  2. 2.Removal of the restrictions registered by the 1st Respondent over Transmara/Ololchani/1673

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 19, 20, 21, 22, 23, 27, 28, 31, 40, 40(3)(b)(i), 43, 47, 48, 50, 64, 157, 159, 258
  • Land Registration ActSections 18, 19, 86, 87

Cases cited (5)

  • Rafiki Enterprises Limited v. Kingsway Tyres and Automart Limited
  • Karisa Chengo
  • Kenya Hotel Properties v. Attorney General
    (Petition No. 16 of 2020) 2022 eKLR
  • Joseph Leteipa Ole Basi v. Kosika Morombi Ole Yasi and 5 Others (Kilgoris ELC No. 36/2021)
  • Ole Ketuno Ole Basi v. Directorate of Criminal Investigation and 2 Others (Kilgoris ELC Misc No. E009 of 2024)
Jurisdiction invoked
Article 165(6)/ELC jurisdiction as a superior court of equal status with the High Court to hear constitutional petitions within its specialized jurisdiction

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, "Basi v Land Registrar Transmara West, East and South & another; Yasi & 3 others (Interested Parties) (Environment and Land Petition E007 of 2024) [2025] KEELC 5627 (KLR)", Case Analysis (2025). Petition dated 19th July 2024 (Kilgoris ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5627/eng@2025-07-30

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