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ELCDismissedPetition dated 26th April 2021 (Makueni ELC)· [2025] KEELC 6683 (KLR)

Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society) on Behalf of 2500 Society Members Squatters And Evicteees From Makala Farm LR No 1748) v National Land Commission & 4 others (Environment and Land Constitutional Petition E004 of 2021) [2025] KEELC 6683 (KLR)

Environment and Land Court
26 September 2025
13,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a community's claim to 5,000 acres, confirming that registered titles stand unless fraud is proved and that native title doctrine does not apply in Kenya.

What this practically means

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Executive summary

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The Petitioners, members of Mamukii Society, petitioned for declarations that they are the true owners of L.R. No. 1748 Kiima Kiu (about 5,048 acres) by virtue of indigenous customary law and native title; that the 1948 grant to Robin Woodcraft Stanley was null and void; that the title be cancelled and re-issued to the Trustees of Mamukii Society; and that their rights to housing, food, health and dignity were violated through colonial-era eviction and atrocities. The court framed three issues: jurisdiction, entitlement to the orders sought, and sub judice. On jurisdiction, it followed Chief Land Registrar v Nathan Tirop Koech, the Del Monte and Kipsiwo decisions, holding the ELC competent to determine historical land injustice claims. On the merits, the court rejected the native title doctrine as inapplicable in Kenya (adopting Henry Wambega), found the Petitioners had produced no genealogical or documentary proof of ancestry, occupation or dispossession, and that graves were not proved during the locus visit. The court held the 5th Respondent's title, derived from the 1947 Crown Lands Ordinance grant and transferred under the Registration of Titles Act, was indefeasible under Sections 24, 25 and 26 of the Land Registration Act, Section 15(2) of the NLC Act not overriding RTA indefeasibility, and no fraud having been proved. Constitutional violation claims failed the Anarita Karimi Njeru precision and evidentiary threshold. The sub judice plea, based on Makueni ELC No. 8 of 2020, failed because the Petitioners were not shown to be parties there. The Petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction over historical land injustice claims

Holding

The court has jurisdiction notwithstanding the NLC's statutory mandate

Reasoning

Relying on Chief Land Registrar v Nathan Tirop Koech, Kipsiwo Community and Kenya National Chamber of Commerce v Del Monte, the court held that neither the Constitution nor the NLC Act ousts the court's jurisdiction; Section 15(3)(b) of the NLC Act contemplates claims capable of being addressed through the ordinary court system.

p. 18
02

Native title and indigenous customary ownership

Holding

The claim failed; the doctrine of native title does not apply in Kenya and no genealogical or documentary evidence of ancestry or dispossession was produced

Reasoning

The court adopted Henry Wambega's reasoning distinguishing Kenya from Australia, noted the uniform and similar witness statements without proof of which village witnesses lived in, the absence of a genealogical tree, and failure during the locus visit to prove ancestral graves; community land under Article 63(2) was also not established.

p. 21
03

Indefeasibility of the 5th Respondent's title

Holding

The title, derived from the 1947/1948 Crown Lands Ordinance grant and transferred under the Registration of Titles Act, is indefeasible

Reasoning

Sections 24, 25 and 26 of the Land Registration Act confer absolute ownership subject only to challenge for fraud, misrepresentation or corrupt acquisition; Section 15(2) of the NLC Act, enacted after the RTA, does not override RTA indefeasibility. No fraud was proved.

p. 22
04

Alleged violation of constitutional rights

Holding

The Petitioners failed to satisfy the Anarita Karimi Njeru precision threshold and produced no evidence of violations

Reasoning

Citing Anarita Karimi Njeru, Mumo Matemu and Communications Commission of Kenya v Royal Media Services, the court required a clear link between the aggrieved party, the constitutional provisions and the manifestation of infringement; no such evidence was adduced for Articles 26, 28, 29, 39, 40, 43 and 48.

p. 24
05

Whether the Petition is sub judice to Makueni ELC No. 8 of 2020

Holding

The sub judice plea failed because the 5th Respondent did not demonstrate the Petitioners were parties or privies in the other suit

Reasoning

Section 6 of the Civil Procedure Act requires the same parties or parties under whom they claim litigating under the same title; the 5th Respondent did not show the Petitioners were parties to Mary Waeni Mutuse v Stanley & Sons Ltd.

p. 25
06

Whether the NLC acknowledged the Petitioners' historical injustice claim

Holding

The claim lodged with the NLC was by Kiamuka Society, not the Petitioners, so the Petitioners' assertion that the NLC validated their claim was unfounded

Reasoning

The record showed the 28th August 2018 claim was submitted by Kiamuka Society; the Petitioners produced no evidence that they themselves lodged a claim with the NLC, undermining their reliance on the NLC's response.

p. 19

Legal principles established

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  • The ELC has jurisdiction to hear and determine historical land injustice claims whether or not the NLC is seized of the matter
  • The Australian doctrine of native title is not applicable in Kenya
  • An indereeasible registered title under the RTA/Land Registration Act prevails over historical injustice claims absent proof of fraud or misrepresentation
  • A constitutional petitioner must plead with precision the right infringed, the violator, and the manner of infringement

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Article 165(3) of the Constitution and Article 67(2)(e) read with Section 15 of the National Land Commission Act (jurisdiction over historical land injustice claims)

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, "Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society) on Behalf of 2500 Society Members Squatters And Evicteees From Makala Farm LR No 1748) v National Land Commission & 4 others (Environment and Land Constitutional Petition E004 of 2021) [2025] KEELC 6683 (KLR)", Case Analysis (2025). Petition dated 26th April 2021 (Makueni ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6683/eng@2025-09-26

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