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ELCAllowedEnvironment and Land Constitutional Petition E001 of 2025

Kojo v Atwanga & 4 others

Environment and Land Court
25 September 2026
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a land decision that gave a deceased man's family an octogenarian farmer's land without a fair hearing.

What this practically means

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Executive summary

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The petitioner, an octogenarian resident of Ndhiwa Sub-County, petitioned the Environment and Land Court at Homa Bay under Articles 40, 47, 50 and 162(2)(b) of the Constitution, challenging a decision of the Deputy County Commissioner dated December 29, 2023 that purported to award Land Parcel No. 1778, Kasirime Adjudication Section (approx. 3.63 Ha) to Aloice Mark Atwanga, a person who died in 2014. The petitioner had occupied the land since 1953 and secured a favorable objection ruling from the District Land Adjudication Officer on August 24, 2001. The respondents raised a preliminary objection on jurisdiction under Section 30(1) of the Land Adjudication Act (Cap 284), contending the petition was a civil claim in constitutional attire and that written consent of the adjudication officer was required. The State also maintained the DCC acted lawfully under delegated powers. The 1st Respondent invoked constitutional avoidance and asserted the Atwanga family's historical claim. The court rejected the jurisdictional objection, holding that Section 30 cannot shield patent administrative illegality, and that the High Court and ELC retain supervisory jurisdiction under Articles 22, 23 and 165 where administrative bodies act ultra vires. It found the appeal process breached natural justice: a summons issued on six days' notice, no memorandum of appeal filed, and the purported appellant deceased with no grant of representation. The court held that vesting title in a deceased person is legally impossible, the Law of Succession Act applying to devolution of adjudicated interests. The petition was allowed in full: declarations of ownership and constitutional violation, certiorari quashing the DCC's decision, an order directing cancellation of any resulting register entries, a permanent injunction against the 1st Respondent, and costs against the 1st and 2nd Respondents jointly and severally.

Questions the Court framed

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

  1. 1.Whether this Court has the requisite jurisdiction to entertain the Petition in light of Section 30 of the Land Adjudication Act, the doctrine of exhaustion, and the legal tenability of the State's arguments.
  2. 2.Whether the 2nd Respondent violated the rules of natural justice and Article 50/47 by hearing an appeal without proper grounds, short-circuiting notice, and proceeding in the absence of a legal representative for a deceased appellant.
  3. 3.Whether a quasi-judicial administrative body can lawfully confer absolute title and register land in the name of a deceased person (Aloice Mark Atwanga), and how the Land Adjudication Act interacts with the Law of Succession Act (Cap 160).
  4. 4.Whether the 2nd Respondent had jurisdictional competence to overturn a settled adjudication objection ruling delivered on August 24, 2001, over 22 years prior.
  5. 5.Whether the Petitioner is entitled to the constitutional reliefs sought and who should bear the costs.

Key legal issues

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01

Jurisdiction notwithstanding Section 30 of the Land Adjudication Act

Holding

The Court has full jurisdiction to interrogate the constitutionality of the administrative process; Section 30 cannot shield illegality.

Reasoning

Where administrative bodies act ultra vires and violate Articles 40 and 50, the High Court and ELC retain inherent constitutional supervisory jurisdiction under Articles 22, 23 and 165. Section 30 cannot be used as a shield to sanitize administrative illegality, procedural ambush and nullities. Resurrecting a stale dispute after two decades without a validly prosecuted appeal lacked jurisdictional competence.

p. 4
02

Breach of fair hearing (Articles 47 and 50)

Holding

The impugned decision violated natural justice: summons on six days' notice, no memorandum or grounds of appeal filed or served, hearing by ambush.

Reasoning

The 2nd Respondent issued a summons dated November 10, 2023 requiring appearance on November 16, 2023, without substantive grounds of appeal from the 2001 ruling. Following Kiatuny v Land Adjudication Officer, quasi-judicial tribunals are strictly bound by natural justice; the right to a fair hearing under Article 50 is non-negotiable, making the process a structural nullity.

p. 4
03

Registration of land in the name of a deceased person

Holding

An administrative decision vesting title in a deceased person is legally impossible, irrational and ultra vires; the Law of Succession Act applies to devolution of adjudicated land interests.

Reasoning

Aloice Mark Atwanga died in 2014, before the hearing. The LSA is not excluded from adjudication; transmission of an adjudicated interest requires a personal representative under a grant (Sections 2 and 79 LSA). A deceased person lacks capacity to hold land, so the decision was dead on arrival.

p. 5
04

Finality of adjudication and protection of property (Article 40)

Holding

Overturning a settled 2001 objection ruling after 22 years and facilitating destruction of the petitioner's investments violated Article 40.

Reasoning

The District Land Adjudication Officer's ruling of August 24, 2001 settled the objection in the petitioner's favor; over 22 years lapsed without a competent appeal. Dispossessing an octogenarian who cultivated the land for over 70 years, and destruction of beehives and trees valued at KES 99,000 and KES 150,000, constituted arbitrary deprivation of property.

p. 5

Legal principles established

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  • Section 30 of the Land Adjudication Act cannot shield patent administrative illegality; courts retain constitutional supervisory jurisdiction where administrative bodies act ultra vires.
  • A deceased person lacks legal capacity to acquire, hold, or be registered as absolute proprietor of land; vesting title in a deceased person is a nullity.
  • Quasi-judicial administrative tribunals are strictly bound to observe the rules of natural justice; a hearing by ambush is a structural nullity.

Court orders

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  1. 1.Declaration that the Petitioner is the absolute, legal, and beneficial owner of Land Parcel No. 1778, measuring approximately 3.63 Hectares in Kasirime Adjudication Section within South Nyanza, Homa Bay County.
  2. 2.Declaration that the Respondents jointly and severally violated the Petitioner's fundamental constitutional rights to a fair hearing under Article 50 and the right to property under Article 40 of the Constitution of Kenya, 2010.
  3. 3.Order of Certiorari bringing into the Court and quashing entirely the decision/ruling of the 2nd Respondent delivered on December 29, 2023, purporting to confer rights or register Land Parcel No. 1778 in the name of the deceased Aloice Mark Atwanga.
  4. 4.Order directing the 4th Respondent (Land Registrar, Homa Bay County) to cancel, nullify, or desist from effecting any entries, registrations, or title issuances arising from or connected to the quashed decision of December 29, 2023, ensuring the register remains intact in favor of the Petitioner.
  5. 5.Permanent Injunction restraining the 1st Respondent, whether by himself, his agents, servants, or employees, from entering, leasing, cultivating, cutting trees, demolishing beehives, or in any other manner interfering with the Petitioner's quiet possession and ownership of Land Parcel No. 1778, Kasirime Adjudication Section.
  6. 6.Costs of the Petition and the preceding application to be borne by the 1st and 2nd Respondents jointly and severally.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 40, 47, 50, 162(2)(b) and 165 of the Constitution of Kenya, 2010

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.

Section 30 of the Land Adjudication Act cannot be used as a shield or a sanctuary to sanitize patent administrative illegality, procedural ambush, and nullities.
p. 4Supervisory jurisdiction over land adjudication
A deceased person lacks legal capacity to acquire, hold, or be registered as an absolute proprietor of land.
p. 5Legal capacity of deceased persons
An administrative decision that vests title in a corpse is legally dead on arrival, irrational, and ultra vires.
p. 5Nullity of decision vesting title in deceased person
A hearing conducted by ambush—where an octogenarian is summoned on short notice without particulars or valid grounds of appeal—is a structural nullity.
p. 4Natural justice / fair hearing
Judgment is hereby entered for the Petitioner against the Respondents jointly and severally in the following terms:
p. 5Disposition
A Declaration is hereby issued that the Petitioner, Alfonce Gunga Kojo, is the absolute, legal, and beneficial owner of Land Parcel No. 1778, measuring approximately 3.63 Hectares in Kasirime Adjudication Section within South Nyanza, Homa Bay County.
p. 5Final orders - declaration of ownership
An Order of Certiorari is hereby issued bringing into this Court and quashing entirely the decision/ruling of the 2nd Respondent (Deputy County Commissioner, Ndhiwa Sub-County) delivered on December 29, 2023
p. 5Final orders - certiorari
The costs of this Petition and the preceding application shall be borne by the 1st and 2nd Respondents jointly and severally.
p. 6Costs

Issues in the judgment

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minor

Petition pleaded damages for destroyed property (KES 99,000 and KES 150,000) but the disposition makes no award on these heads.

minor

Judgment styled as a 'land appeal decision' challenge but no appeal-from details of the DCC proceedings are recorded.

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, "Kojo v Atwanga & 4 others", Case Analysis (2026). Environment and Land Constitutional Petition E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25

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