Usenge v National Land Commission & 2 others

2. The Petitioner seeks the following specific reliefs: a) A declaration that the Land Registrar has no statutory or constitutional authority to cancel or revoke a land title via a Gazette Notice, whether in the public interest or otherwise. b) A declaration that Leasehold Plot No. LR 1432/55 (or half of Plot No. Homabay Municipality/Block 1/167) belongs to the Petitioner and ought to be registered in her name upon fulfilling prerequisite conditions. c) A declaration that the rules of natural justice were breached when the Land Registrar revoked title No. LR 1432/55 without granting the Petitioner an opportunity to be heard. d) An order of mandamus directing the Land Registrar, Homa Bay County, to rectify the lease register by deleting the Permanent Secretary to the Treasury (as Trustee for the Ministry of Housing) as proprietor of Homabay Municipality/Block 1/167, subdivide the parcel into two equal portions, and register the portion measuring 0.0433 hectares (formerly LR 1432/55) in the name of Risper Atieno Usenge. e) General damages for loss of rental income. f) Costs of the Petition and any further relief the Court deems fit. 2. THE RESPONDENTS' OPPOSITION A. The 1st Respondent's Case 3. The 1st Respondent filed a Replying Affidavit opposing the Petition on the following primary grounds: i. The Petitioner relies solely on an uncompleted Sale Agreement dated 20th September 2001 executed with one Wilfred Njunge Kinuthia (now 2|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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deceased). ii. No completion documents, proof of full payment of the purchase price (KSh 1,850,000), or evidence of formal transfer or succession proceedings have been produced. iii. No tenancy agreements or proof of rental income collection were tendered to substantiate claims of financial loss. iv. The Petitioner took zero legal action between the alleged government reassertion of title and gazettement in 2010 and the filing of this Petition in 2025—an unexcused delay spanning 15 years. B. The 2nd and 3rd Respondents' Case. 4. The 2nd and 3rd Respondents (represented by the Hon. Attorney General) opposed the Petition through Grounds of Opposition anchored on three core pillars: Statute of Limitations: Under Section 7 of the Limitation of Actions Act (Cap 22), actions for the recovery of land must be brought within 12 years, and actions for rent arrears or damages within 6 years. The Petitioner’s cause of action accrued upon the alleged revocation of title in 2010; hence, land recovery claims lapsed by 2022/2023, and rental damages lapsed by 2016. Doctrine of Exhaustion & Constitutional Avoidance: The Petitioner failed to utilize ordinary statutory remedies for land recovery and civil claims, improperly attempting to circumvent mandatory limitation periods by framing a standard land dispute as a constitutional petition. Locus Standi & Root of Title: The Petitioner holds no valid title or possessory interest in the suit property capable of constitutional protection under Article 40, relying instead on an incomplete 2001 Sale Agreement unsupported by full payment documentation or a Grant of Letters of Administration. 3|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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DIRECTIONS AND SUBMISSIONS 5. By consent of the parties, directions were issued for the disposal of the Petition by way of written submissions. 1. Petitioner's Submissions 6. The Petitioner submitted that: a) Statutory limitation periods do not strictly apply to Constitutional Petitions enforcing fundamental rights. b) The Supporting Affidavit establishes a clear chain of title from the original owner to the first purchaser and ultimately to the Petitioner. c) The Petitioner paid the full purchase price, land rates, and rents to the Commissioner of Lands. The argument that the property remains Government land due to lack of formal transfer is fallacious. d) The District Land Registrar could only rectify the register under the narrow provisions of Section 142 of the Registered Land Act (RLA). 2. 1st Respondent's Submissions 7. The 1st Respondent submitted that: a) To invoke Article 40 of the Constitution, the Petitioner must prove lawful ownership. Producing a Sale Agreement dated 20th September 2001 without completion documents is insufficient. b) In Dina Management Ltd v. County Government of Mombasa (SC Petition 8 (E010) of 2021), the Supreme Court affirmed that title acquired irregularly is not protected under Article 40. c) Although the vendor (Wilfred Njunge Kinuthia) passed away prior to completing the transfer, no succession proceedings were ever initiated by the Petitioner to perfect title. d) Clause (iii) of the Sale Agreement specified that transfer would take 4|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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effect upon full payment. No proof of payment of Kshs 1,850,000/was adduced. e) The Petitioner never held registered title; thus, rights to natural justice regarding title revocation were not infringed. f) The Petitioner was aware in 2010 of Government claims over the land but sat on her rights for 15 years. 3. 2nd & 3rd Respondents' (Attorney General) Submissions 8. The Attorney General framed four issues for determination: (i) Whether the Petitioner has locus standi. (ii) Whether the dispute is statute-barred. (iii) Whether the Petitioner is entitled to the reliefs sought. (iv) Who bears the costs. 9. The AG submitted that: i. The Petitioner was never the legal owner of Plot No. LR 1432/55 and lacks locus standi. ii. Under Come Cons Africa Ltd v. Loans Bill Ltd [2025] KEELC 535 (KLR), statutory limitations apply strictly once time runs out. The land claim lapsed in January 2023 and damages claims in 2016. iii. Without title or proof of possessory interest, no claim under Article 40 can stand. 3. ISSUES FOR DETERMINATION. 10.Drawing from the pleadings, evidence, and written submissions filed by all parties, this Court distills the matters into the following key issues for determination: a) Whether the Petitioner possesses the requisite locus standi to 5|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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maintain this Petition. b) Whether the Petition is time-barred under the Limitation of Actions Act and barred by the doctrine of constitutional avoidance. c) Whether the Petitioner has established a valid root of title or a protectable interest under Article 40 of the Constitution to satisfy the threshold for constitutional relief. d) Who shall bear the costs of the Petition. 4. ANALYSIS AND JUDICIAL FINDINGS. Issue 1: Whether the Petitioner Has Locus Standi 11.Locus standi denotes the legal capacity of a party to institute proceedings or be heard before a court of law (Black’s Law Dictionary, 9th Ed.). While Articles 22 and 258 of the Constitution of Kenya, 2010, significantly expanded the vistas of access to justice (Mumo Matemu v. Trusted Society of Human Rights Alliance; John Wekesa Khaoya v. Attorney General), a litigant invoking constitutional protection in a personal capacity must still demonstrate a distinct legal or equitable interest (Khelef Khalifa El-Busaidy v. Commissioner of Lands; Law Society of Kenya v. Communication Authority of Kenya). 12.The Petitioner brings this claim in her personal capacity as a purchaser asserting an individual property right, rather than pursuing representative capacity on behalf of the Estate of the deceased vendor via a Grant of Letters of Administration ad litem (John Wairimu Mathenge v. Attorney General). Under the liberalized standing thresholds of Articles 22 and 258, a party asserting a personal constitutional infringement possesses procedural standing to approach the court. 13.However, locus standi to file a petition is entirely distinct from establishing a valid substantive cause of action or meeting strict evidentiary burdens. While 6|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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the Petitioner clears the procedural threshold to knock on the court's door, her substantive claims must still withstand rigorous statutory and evidentiary scrutiny. Issue 2: Whether the Petition is Time-Barred & the Principle of Constitutional Avoidance 14.Although fundamental rights petitions are not bound by rigid statutory limitation periods, this Court is fully empowered to evaluate whether a claim was lodged within a reasonable time (Monica Wangu Wamwere v. Attorney General, SC Petition Nos. 26, 34 & 35 of 2019). Article 24 of the Constitution permits reasonable and justifiable limitations by law, and the Limitation of Actions Act (Cap 22) serves as a vital statutory guardrail against stale litigation. 15.Litigants cannot bypass mandatory statutory time limits or evade primary legal regimes by simply relabelling ordinary civil disputes, contractual breaches, or land recovery suits as constitutional petitions (Zehrabanu Janmohammed v. Nathaniel K. Lagat & Another; Josephat Ndirangu v. Henkel Chemicals (EA) Ltd; Peter Lubullellah v. Teachers Service Commission): Recovery of Land: Section 7 of Cap 22 mandates that actions to recover land be brought within 12 years. The alleged revocation and government re-assertion occurred in 2010; thus, the cause of action expired inexorably in 2022. Contract and Judicial Review: Breach of contract claims lapse after 6 years, tort claims after 3 years, and Judicial Review remedies challenging administrative actions must be filed within 6 months. Inordinate Delay: The Petitioner instituted this suit in October 2025—a staggering 15 years after the cause of action accrued. 7|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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16.The Petitioner offered no plausible explanation for this inordinate delay, resting solely on the misconception that constitutional petitions are immune to time bars. As affirmed by Majanja, J. in James Kanyita Nderitu v. Attorney General & Another, Petition No. 180 of 2011: "Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under... the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The Court is obliged to consider whether justice will be served by permitting a respondent... to be vexed by an otherwise stale claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within a reasonable time." 17.Furthermore, the promulgation of the 2010 Constitution is not a blank check or a retroactive instrument designed to revive extinct statutory causes of action (Peter Lubullellah v. Teachers Service Commission; Mitei v. NSSF Board of Trustees). In Daniel Kibet Mutai & 9 others v. Attorney General [2019] eKLR, the Court underscored: "Delay is an anathema to fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159... to allow a party who alleges violation of constitutional rights, to bring their action after undue inordinate delay, without any justifiable reason." 18.Once a limitation period expires, the statutory defense operates strictly and unbendingly. As Lord Greene famously articulated in Hilton v. Sutton Steam Laundry (1946) 1 KB: 8|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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“...the Statute of Limitation is not concerned with merits; once the axe falls, it falls and a Defendant who is fortunate to have acquired the benefit of the statute of limitation is entitled to insist on his strict rights.” 19.Viewed from any conceivable legal prism, the Petitioner's claim is hopelessly and irrecoverably time-barred. Issue 3: Whether the Petitioner Has Established Ownership or Satisfied Constitutional Thresholds 20.It is a foundational tenet of constitutional litigation that a petitioner seeking redress must state their claim with absolute precision, identifying the specific constitutional provisions violated and the exact manner of infringement (Anarita Karimi Njeru v. Republic (1979); Communications Commission of Kenya v. Royal Media Services Ltd). 21.As the Court of Appeal reaffirmed in Mumo Matemu v. Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012: "We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims... Cases cannot be dealt with justly unless the parties and the court know the issues in controversy." 22.The Petitioner has presented generalized, sweeping allegations without establishing a sustainable legal interest in the land. Under Sections 101, 102, 103, 107, and 109 of the Evidence Act (Cap 80), the legal burden of proof lies squarely on the party asserting the existence of a legal right or liability. Parties cannot dump incomplete pleadings into court and expect the judiciary to 9|Page HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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conduct forensic investigations on their behalf (United States v. Dunkel; Col. (Rtd) Dr. Kizza Besigye v. Yoweri Kaguta Museveni). 23.Moreover, even if the merits were examined, Article 40(6) of the Constitution explicitly excludes protection for property that was unlawfully or irregularly acquired. Under Section 26(1) of the Land Registration Act and the binding precedent in Dina Management Ltd v. County Government of Mombasa & 5 Others [2023] KESC 30, a party claiming land ownership must establish an impeccable root of title (Munyu Maina v. Hiram Gathiha Maina). An agreement for sale or an allotment letter is merely an executory contract or an invitation to treat—it does not of itself confer legal ownership or indefeasible title (Torino Enterprises Limited v. Attorney General; Dr. Joseph N.K. Arap Ng'ok v. Justice Moijo Ole Keiyua). 24.The Petitioner’s evidentiary fatal flaws include: a) Total failure to produce completion receipts, banker's drafts, formal transfer instruments, Land Control Board consents, or proof of full payment of the purchase price (KSh 1,850,000). b) Complete absence of tenancy agreements, rent records, or corroborating proof to substantiate claims of lost rental income. 25.Consequently, the Petition falls severely short of constitutional thresholds, presenting an impermissible attempt to bypass statutory mechanisms, which mirrors the censure expressed in Gabriel Mutava & 2 others v. Managing Director, Kenya Ports Authority & another [2016] eKLR: "Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek 10 | P a g e HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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redress under such other legal regime rather than trivialize constitutional litigation." Issue 4: Costs 26.Under Section 27 of the Civil Procedure Act (Cap 21), costs follow the event as a matter of judicial discretion (Party of Independent Candidates of Kenya v. Mutula Kilonzo & 2 Others [2013]). There are no compelling or exceptional circumstances presented in this matter that would justify departing from this settled principle. 5. FINAL DISPOSITION AND ORDERS. 27.Accordingly, upon careful consideration of the pleadings, statutory provisions, and judicial precedents, this Court orders as follows: 1. The Petition dated 14th October 2025 is hereby dismissed in its entirety for being hopelessly time-barred, lacking in merit, and failing to satisfy the mandatory thresholds for constitutional relief. 2. Applying the primary principle that costs follow the event, the costs of this Petition are awarded to the Respondents. DATED, SIGNED, AND DELIVERED AT HOMA BAY THIS 16TH DAY OF SEPTEMBER 2026. HON. JUSTICE J.W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT In the presence; 1. Oyala for G.S Okoth – Present 2. Kithuka for the 1st Respondent – Absent 3. Attorney General for the 2nd and 3rd Respondent – Absent 11 | P a g e HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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4. Court Assistant, Mercy 12 | P a g e HOMA BAY ELC PETITION NO. E008 OF 2025, JUDGMENT

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