Mangi v Mayungu Real Estates Limited & 2 others

c. A Declaration that the parcel of land reference number Chembe/Kibabamshe/270 belongs to the petitioner; d. A prerogative order for certiorari quashing the certicate of title issued to the 1st respondent over land reference number Chembe/Kibabamshe/270; e. A prerogative order of mandamus be issued directing the 2nd respondent to register and issue the petitioner with the certicate of title for land reference number Chembe/ Kibabamshe/270; f. Costs of this petition to be provided for; g. Any such other orders as this Court shall deem just and appropriate in the circumstances. 3. The petition is supported by a sworn adavit of the petitioner also dated 4th December 2024. 4. The 2nd and 3rd respondents led grounds of opposition dated 19th March 2025 stating as follows: a. The petitioner has failed to substantively and precisely demonstrate how the alleged constitutional articles have been violated in relation to his right to own the suit property; b. The petitioners failed to give/describe with precision how the actions of the 2nd respondent were reckless and a breach of the Constitution; c. The petitioner has failed to bring out the cause of actual against the 2nd and 3rd respondents and a such the allegations against the 2nd and 3rd respondents should be dismissed with costs to the 3rd Respondent; d. This petition is a waste of both the court’s and the respondents’ time and the same should be dismissed with costs to the respondents. 5. No response was led by the 1st respondent who was served by way of substituted service. 6. At the court’s orders, the petitioner led submissions dated 28th April 2025 and the 2nd and 3rd respondents led their submissions dated 4th June 2025. The petitioner’s submissions focused on the issue of locus standi and whether there is a cause of action available for him and concluded in a positive note on the two issues. Analysis and Determination 7. I have considered the contents of the petition, the response and the submissions led in the preparation of this judgment. The issues for determination in the present petition are as follows. a. Whether the jurisdiction of the court has been properly invoked; b. When are the orders sought are merited. 8. Regarding the invocation of the court jurisdiction it is noted that constitutional petitions are a special form of litigation for redress of constitutional violations. In such litigation facts leading to the alleged violation should not be in dispute. The court is duty bound in such circumstances to scrutinize the set of facts and conclude whether the alleged violation of right provided for under the Constitution has occurred. 9. Having regard to the present petition, the petitioner’s claim is that he has been living in the suit property for many years and that the National Land Commission has recommended that he be registered and issued with a title to the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18580/eng@2025-11-20 2

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10. The recommendation by the National Land Commission is a recommendation that should be referred to the 2nd respondent for action, who is bound to scrutinize the same and decide on the cause of action. The petitioner appears to appreciate that fact when he states in the supporting adavit at paragraph 6 as follows. “ 6. 11. That I am advised by my advocates on record which advice I verily believe to be true than the 2nd respondent has no mandate to cancel the 1st respondent's title without an order from the court." At paragraph 12 he further states as follows: “ 12. That I aver that unless the 1st respondent demonstrates to the honorable Court on how they acquired the certicate of title the same shall remain unchallenged by the petitioner." 12. The fact that the National Land Commission simply made a recommendation and the fact that the land is already registered in the name of the 1st respondent are indicators that there is a dispute between the petitioner and the 1st respondent as to the legality or otherwise of the registration of the latter as proprietor, which needs to be resolved by way of a detailed process of ascertainment of whether the title held by the 1st respondent is valid. 13. That is borne out by paragraph 4 of the supporting adavit of the petitioner which state as follows “ That I aver that I have been living in the suit property and I am apprehensive that the respondents have unlawfully colluded registered and issued the 1st respondent with title of (sic) the suit property. (annexed is a copy of ocial search marked SKM1)” 14. The ocial search certicate exhibited demonstrates that the suit land was not registered in the name of the 1st respondent after the National Land Commission’s recommendation were made. The recommendations were made either during or after the year 2017 while the 1st respondent was registered as proprietor on 20th January 1999 according to that ocial search certicate. 15. From the Petitioner’s lings in this case, details of the records of proceedings held by the National Land Commission and scanty. There is no record of the taking of any evidence provided. In such circumstances it is unsafe for this court to simply rubberstamp the recommendation of the National Land Commission without conducting its own hearing. Besides it is for this Court to pronounce whether there is illegality or not in the registration of a person as proprietor after trial involving all claimants to the land. That pronouncement can only be made in an ordinary suit commenced by way of plaint and conducted in the usual manner of adducing evidence of illegality against the culpable parties, though the evidence adduced before the National Land Commission, if presented, may go a long way in aiding the claimant’s case. Indeed, contrary to the petitioner’s belief, he has not established that there is a blanket bar to the commencement of a suit by way of a plaint, or even citing the provisions of the Constitution therein, even where the National Land Commission has made recommendations. That has not been done in this case. 16. Illegality in the process of registration of land and acquisition of title is usually tried by way of plaint. The Civil Procedure Act has provisions for commencing suits by way of plaint or origination summons. The petitioner was not devoid of options. Indeed, it is not usual for it to be done in suit led by way of petition and I have already stated at the commencement of discussion of the present issue, petitions are special proceedings by which a party establishes violation of his constitutional rights. If illegality https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18580/eng@2025-11-20 3

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has not been established in a case tried by the court between the parties claiming the land, a nding of violation cannot be made in a petition. It is therefore the opinion of this court that this petition is not the proper manner of litigating the legality of illegality of the registration of the 1st respondent. 17. In Francis Oyagi Vs Samwel Motari Mangare and 2 Others (2018) eKLR the court held as follows: “ The court must guard against improper transmission of normal disputes or ordinary issues of litigation being clothed in constitutional petitions. I am aware that the existence of an alternative remedy or procedure may not oust the jurisdiction of the court. But the court in deciding whether to entertain a suit must take into account the existence of such a remedy and its application to the issues at hand.” 18. In Bernard Murage -vs- Finserve Africa Ltd & others (2015) eKLR the court stated: “ Not each and every violation of the Law must be raised before the High Court as a constitutional issue. Where there exists alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued 1st.” 19. In Mike Rubia & another v Moses Mwangi & 2 others [2014] eKLR it was observed as follows by the court: “ … I maintain that the Constitution is not a substitute for all redress of all injuries especially where the Petitioner has another remedy in law. If that be the case, he must pursue that remedy instead of making constitutional issues of what really is a pure matter of private law and where private law has an adequate remedy.” 20. Though I agree with the petitioner that he may have a cause of action against all the respondents herein, he ought to have lodged an ordinary suit to ventilate his claims in which the proceedings of a National Land Commission and its recommendation would have played a persuasive role in convincing the court to grant the remedies he is seeking. For the foregoing reasons I nd that the jurisdiction of this court has not been properly invoked. 21. Even for arguments sake had this court found that the jurisdiction of this court has properly been invoked, it is the rule long established since the renowned Anarita Karimi Njeru – citation Njeru v Republic [1979] KEHC 30 (KLR) - that where one claims that his constitutional rights have been violated, he must set out with a reasonable degree of precision part of which he complains the provisions said to be infringed in the manner in which they are alleged to be infringed. Mere enumeration of the constitutional provisions, as has been done by the petitioner, alleged to have been violated, or are under threat of violation does not suce to warrant the grant of relief in a petition. The relevant dicta on the issue in the Anarita Karimi case (supra), for completeness, is as follows: “ We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 22. In Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR the court observed as follows: “ 11. It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18580/eng@2025-11-20 4

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of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints.” 23. The only claim made against the 2nd respondent is that he registered the 1st respondent as proprietor in 1999 which was against the land registration act and the Constitution. The Land Registration Act and the Constitution were not in place at the time of registration. The provisions of the old legislation applicable as at 1999 and the old Constitution have not been cited as having been violated. Besides it has not been stated in the petition as required by Anarita Karimi (supra) as to how that registration went against the provisions of either the present or the former statutes or the Constitution. It has not for example been urged under the Facts Relied On in the petition that after the National Land Commission recommendation, the petitioner approached the 2nd and 3rd respondents to act on the same, or that they refused to do so. 24. Looking wholistically through the present petition I nd that it has not established how any the respondents violated the petitioners right under the constitutional provisions cited. There simply no evidence of that. The petition would still have failed on the merits. 25. The conclusion of this court is that its jurisdiction has not been properly invoked and the petition dated 4th December 2024 is struck out. Each party shall bear their own costs. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 20TH DAY OF NOVEMBER 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18580/eng@2025-11-20 5

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