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ELCPartially AllowedPetition dated 12th July 2012

Wanjohi & 2 others v Attorney General & 2 others (Environment and Land Petition 74 of 2013) [2025] KEELC 6937 (KLR)

Environment and Land Court
9 October 2025
8,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled the EACC couldn't block a Nairobi property owner's bank charge through an informal directive without following lawful procedures.

What this practically means

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Executive summary

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The three Petitioners, registered proprietors of L.R No. 209/674 (Nature House), petitioned for declarations that their rights under Articles 40 and 47 of the Constitution were violated when the Chief Land Registrar declined to register a charge over the suit property securing a Kshs 70 million I&M Bank facility, acting on a directive from the Ethics and Anti-Corruption Commission which was investigating the acquisition of the property. The EACC justified the restriction as preservation of the property pending ongoing investigations into the transfer from the Kenya Civil Servants Welfare Association's trustees, which it contended was irregular. The court framed two issues: whether violations of Articles 40 and 47 were established, and what remedies were appropriate. It held that although EACC's investigative powers are not administrative action under Article 47, the directive restraining dealings was an administrative decision that had to comply with statutory safeguards - a caveat under Section 57 of the Registration of Titles Act, a restriction under Section 76 of the Land Registration Act, or a preservation order under Section 56 of ACECA. None was used; the directive was informal. The court found the combined conduct of the 2nd and 3rd Respondents infringed the Petitioners' rights under Articles 40 and 47, noting that over twelve years of inconclusive investigation could not sustain an indefinite restraint. Declarations issued, permanent and mandatory injunctions were granted compelling withdrawal of the directive and registration of the charge. General and exemplary damages were refused, the Respondents having acted in good faith though illegally. The 2nd Respondent was ordered to bear the costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioners have established violations or threats of violations of their constitutional rights under Articles 40 and 47 of the Constitution?
  2. 2.What are the appropriate remedies, if any?

Key legal issues

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01

Whether the refusal to register the charge violated Article 40 property rights

Holding

Yes. The restraint on dealings was effected through an informal directive without any registered caveat, restriction, or court preservation order, and thus infringed Article 40

Reasoning

The court found no caveat or restriction was registered and the EACC never invoked Section 56 of ACECA to seek a court preservation order. The directive to the Registrar was informal and unsupported by lawful authority. Property rights may only be limited by law with clear procedural safeguards, and an indefinite restraint without such safeguards breached Article 40.

p. 15
02

Whether the impugned directive amounted to administrative action under Article 47

Holding

Yes, the directive to the Registrar not to register dealings was an administrative decision and was procedurally unfair and irregular

Reasoning

While EACC investigations per se are not administrative action (per EACC v County Government of Kitui), the directive instructing the Registrar not to register dealings was a discrete administrative decision affecting legal rights. It was issued informally, without notice or hearing to the Petitioners, contrary to Article 47 and Section 4 of the Fair Administrative Action Act.

p. 13
03

Whether general and exemplary damages were payable

Holding

No, both heads refused

Reasoning

Punitive damages require proof of a highly culpable state of mind, which was absent. General damages were refused because the Respondents acted in good faith, albeit illegally, to preserve the status quo pending investigations. Declarations and injunctions were considered adequate vindication of the rights.

p. 17
04

Effect of prolonged delay in investigations

Holding

Over a decade of inconclusive investigation, with only a single summons in 2012, could not lawfully sustain an indefinite restraint on the property

Reasoning

The 2nd Respondent claimed the Petitioners' non-cooperation stalled investigations, but the record showed only one summons in 2012 and no follow-up. The court noted EACC has arrest powers under Section 32 of ACECA it has not exercised, and such unexplained pendency cannot justify continuing interference with proprietary rights.

p. 16

Legal principles established

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  • Refusal or deferral of registration of a dealing by the Land Registrar amounts to administrative action under Article 47 and Section 2 of the Fair Administrative Action Act
  • EACC's investigative powers are not administrative action under Article 47, but tenets of fair administrative action may apply to aspects of investigations
  • EACC cannot restrict dealings in land by informal directive; it must register a caution/restriction or obtain a preservatory or inhibition order from the court
  • Indefinite pendency of investigations without justification cannot justify continuing restraint of constitutionally protected property rights
  • Article 40 protection excludes unlawfully acquired property; courts must interrogate the root of title

Court orders

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  1. 1.A declaration that the Respondents' actions with respect to the refusal to register the charge over the suit property contravened the Petitioners' rights under Articles 40 and 47 of the Constitution
  2. 2.A permanent injunction restraining the Respondents from interfering with the Petitioners' right to charge L.R No 209/674 or deal with it in any other way allowed by law, unless the court orders otherwise
  3. 3.A mandatory injunction requiring the 2nd Respondent to withdraw forthwith its instructions to the 3rd Respondent prohibiting the Petitioners' dealings with L.R No 209/674, unless the court orders otherwise
  4. 4.A mandatory injunction requiring the 3rd Respondent to consider and allow the Petitioner's application for registration of a charge in accordance with the law, unless the court orders otherwise
  5. 5.The 2nd Respondent to bear the costs of the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 23 of the Constitution (jurisdiction to enforce Bill of Rights); Article 22

Relief refused

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General damages

Respondents acted in good faith, although illegally, in believing the status quo should be maintained pending investigations

p. 17

Exemplary/punitive damages

No proof of a highly culpable state of mind

p. 17

Order of certiorari to quash the 3rd Respondent's letter and specific mandamus orders as framed (subsumed in injunctive relief)

Court granted equivalent relief by way of declarations and injunctions in the final orders

Costs

The 2nd Respondent shall bear the costs of the Petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A declaration does hereby issue that the Respondents’ actions with respect to the refusal to register the charge over the suit property have contravened the Petitioners’ rights under Articles 40 and 47 of the Constitution.
p. 17Declaration of violation of Articles 40 and 47
A permanent injunction does hereby issue restraining the Respondents from interfering in any way with the Petitioners’ right to charge the said L.R number 209/674 or deal with it in any other way allowed by the law, unless the court orders otherwise.
p. 17Permanent injunction
A mandatory injunction does hereby issue requiring the 3rd Respondent to consider and allow the Petitioner’s application for registration of a charge in accordance with the law, unless the court orders otherwise.
p. 17Mandatory injunction compelling registration
In the end, the Petition partly succeeds in the following terms:
p. 17Disposition
Such indefinite pendency of investigations, without justification cannot lawfully be invoked to justify a continuing restraint upon constitutionally protected property rights.
p. 16Indefinite investigation cannot sustain restraint of property rights
These safeguards, consistent with the Constitution, serve to ensure that restrictions are lawful, transparent, and contestable.
p. 15Statutory safeguards on restrictions on dealings in land

Issues in the judgment

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minor

Internal inconsistency on investigation timeline: DW1 stated a letter was issued in 2006 restraining the Petitioners, yet the alleged directive relates to 2011-2012 investigations

minor

Petition filed 2012 but judgment delivered 2025; Petitioners' submissions dated 2012 and 2025 while Respondents filed none

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, "Wanjohi & 2 others v Attorney General & 2 others (Environment and Land Petition 74 of 2013) [2025] KEELC 6937 (KLR)", Case Analysis (2025). Petition dated 12th July 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6937/eng@2025-10-09

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