Mwarome v Khamis & 3 others (Land Case Petition E023 of 2025) [2026] KEELC 2339 (KLR)
The bottom line
#A Kenyan court struck out a landowner's constitutional petition, confirming that losing in an ordinary land suit must be challenged by appeal or review, not a fresh petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a constitutional petition can be used to challenge the merits of a judgment in an ordinary suit decided by the same court
- 2.Whether the actions of the Land Registrar executed pursuant to a decree of the court can ground a constitutional petition for violation of Article 40 rights
- 3.Whether the court should order the Directorate of Criminal Investigations to probe the conveyancing process relating to Kilifi/Roka/750
Key legal issues
#Whether the constitutional petition could reopen matters determined in Malindi ELCOS Number 041 of 2015
It could not; the petition was an impermissible attempt to litigate afresh matters conclusively determined in an ordinary suit, whose remedy lay in setting aside, review or appeal
The court reviewed the history: the Originating Summons of 2015 ended in judgment for the plaintiffs on 16th July 2021, and an application dated 23rd January 2025 to set aside that judgment was dismissed on 17th June 2025. The petitioner's grievances, though framed as constitutional, concerned the merits of that judgment. Allowing the petition would see the court sitting on appeal over its own decision. Residual matters could be ventilated in the ordinary forum.
Whether the Land Registrar's registration of the property pursuant to the decree violated Article 40
No constitutional violation arose because the registration was executed pursuant to a lawful decree of the court
The only arguably constitutional issue was whether the second respondent's actions violated the petitioner's right to property under Article 40. But the petitioner conceded that a decree was issued on 8th October 2021 in favour of the first respondent, who used it to effect transfer and registration in 2023. Registration executed pursuant to a court decree cannot ground a constitutional petition.
Whether the court should direct the DCI to investigate the conveyancing process
The prayer was refused; a complaint to the DCI requires no court order and no failure to act was demonstrated
The court held that reporting wrongdoing to the Director of Criminal Investigations should be done at the earliest point without a court order, since the office is presumed to know how to execute its mandate without judicial supervision, and the application did not demonstrate any refusal by the DCI to act in accordance with the law.
Legal principles established
#- A constitutional petition cannot be used to challenge the merits of a judgment in an ordinary suit, particularly one decided by the same court, as that would amount to sitting on appeal over its own decision
- Judgments in ordinary suits tried under statutory processes should be challenged by setting aside applications, review, or appeals, not by constitutional petition
- Actions of the Land Registrar executed pursuant to a decree of the court cannot found a constitutional petition for violation of Article 40 rights
Court orders
#- 1.The Notice of Motion dated 11th September 2025 is struck out
- 2.The petition dated 11th September 2025 is struck out
- 3.No orders as to costs
- 4.The file to be marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya 2010, Article 40 (right to property) invoked in a constitutional petition before the Environment and Land Court
Relief refused
#Temporary injunction restraining the first respondent from interfering with Kilifi/Roka/750
The dispute had been extensively litigated in ordinary suits and the judgment in favour of the first respondent had not been set aside; no constitutional issue arose
Temporary injunction restraining eviction of the petitioner's family and maintenance of status quo
Same as above - application and petition struck out
Order enjoining the Directorate of Criminal Investigations to probe the conveyancing process
A report to the DCI can be made without a court order; the application did not demonstrate the DCI had refused to act
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite that a constitutional petition can not address the merits of the judgment of a court, more so when it was made by the same court trying the petition, otherwise the court may be seen as sitting on appeal in its own decision.
judgments in ordinary suits tried under processes prescribed under statute should, in this court’s view, only attract setting aside applications, review applications or appeals and second appeals where applicable
The actions of the Land Registrar having been executed pursuant to a decree of the court issued in an ordinary civil case, cannot form the ground for a constitutional petition for violation of rights under Article 40 ofthe Constitution.
Consequently, both the application and the petition dated 11th September 2025 are hereby struck out with no orders as to costs. This file shall be marked as closed.
Issues in the judgment
#Names of the parties are not stated in the coram style; parties are referred to only as petitioner and respondents, and the second respondent's identity is inferred from the reference to the Land Registrar
The judgment contains recurring typographical errors ('ofice', 'afidavit', 'ofthe', 'functus oficio')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwarome v Khamis & 3 others (Land Case Petition E023 of 2025) [2026] KEELC 2339 (KLR)", Case Analysis (2026). Constitutional Petition dated 11th September 2025 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2339/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.