Hamisi Abdalla Omar v Said Seif & Mohamed Hashim & 4 Others

declared. g) An order directed at the Director of Surveys, the 6th Respondent, compelling him to resurvey the Original Grant No. CR 1729/15 for purposes of restoring the property to its original state. h) An order directed at the Commissioner of Lands, the 4th Respondent, by way of a writ of mandamus, compelling him to issue fresh Letters of Allotment to the Petitioner and/or any other persons occupying the land, with a view to facilitating the issuance of title deeds. i) Costs of the Petition. PETITIONERS CASE 2. The Petitioners position is that the Respondents have infringed the Petitioners constitutional rights and rights of Utange residents at large. Particularly the Petitioner contends that his right to own property as enshrined in Article 40 of the constitution of Kenya 2010 has been impeded. 3. The Petitioner asserts that the allocation of the parcel to the 1st Respondent violates the National Values and Principles set out in the Constitution of Kenya 2010. That the issuance of allotment to the 1st Respondent on 7/9/2010 after a title deed was issued on 1/9/2010, by the commissioner of lands and the Registrar of Titles respectively is a demonstration of abuse of office by the two entities and violates the principles of fair administrative action set out in Fair Administrative Actions Act, 2015. He states that the same was in breach of principle of public trust and fiduciary duty of the agencies. 4. The Petitioner contends therefore that the Respondents have failed in their constitutional obligation to observe and protect the Petitioners rights. Background 5. The Petition concerns a parcel that was registered as Government Land. Allegedly, the original title deed that was issued under the Land Titles Ordinances 1908 in respect of the Title No. CR 1729/15, registration No. 1120/50, dated 1st August 1950 indicates that the land was transferred to the crown and is currently held by the government of Kenya. 6. The Petitioner states that his deceased parents settled on that parcel and he has also been in occupation and has no other place other than the suit parcel. 7. According to the Petitioner an irregular survey was carried out in the year 2010 and deed plans issued to WALE GONE on the said parcel CR 1725/15, curving out parcels of land creating sub division No. 51801. That the 5th Respondent allegedly purported to issue a letter of allotment to the 1st Respondent despite the fact that he was neither an occupant nor was he known in the area. 8. The Petitioner stated that the 1st Respondent was issued with a title deed on 1/9/2010 before an allotment letter which was issued on 7/9/2010. Consequently, the Petitioner contends, the 1st respondent has made attempts to evict the Petitioner from his home which is his only place of abode. He states that if an order for injunction he will suffer great prejudice as he will be evicted from the parcel The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 2/8

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1st and 2nd Respondent’s case 9. The 1st and 2nd Respondents filed an answer to the petition dated 3rd March 2026 where they contend that the petition revolves around proprietorship of Plot Number 331/section I/Mainland North which has been subdivided and parceled to 3rd parties for value. 10. The 1st and 2nd Respondents state that the court rendered itself conclusively in a judgment in Mombasa ELC Petition No. 6 of 2018(formerly Mombasa High Court Constitutional Petition No. 85 of 2012) Abdulrahman C. Kirao & 3 others v Said Seif & Another on matters raised concerning the property. 11. According to the respondent the court considered the Petition and affirmed his title and the judgment has never been reversed or varied. He contends that this Petition is similar as it challenges his allotment of the property. 12. Further, the Respondents assert that the Petitioner together with others filed a case in Mombasa Magistrates court, against himself and 2 others over the same property where they sought to challenge the ownership of the respondent and the same was dismissed. The orders were not varied or set aside. 13. The Respondent asserts that the Petitioner’s action is an abuse of the court process. He further contends that the Petitioner has not set out the infringed rights with reasonable precision. They assert that the petition is founded on unsubstantiated allegations of ancestral occupation, irregular survey, sub-division, allotment, alteration of the register and adjudication of the property and therefore lacks constitutional character. 14. The Respondents state that the reliefs being sought by the Petitioner to be issued with allotment letters and title deed are attempts to short circuit procedures under the land regulations. They state that they have never been summoned by the 4th respondent as purported. 15. They pray that the Petitioner is stopped at all tracks. Petitioner’s Submissions. 16. The Petitioner submits that the land in question constituted Government Land registered under the Land Titles Ordinance and subsequently reverted to the crown on 1st August 1950. Since the land was public land, its alienation could only be undertaken under strict conformity with the constitution and applicable statutory provision. 17. The Petitioner submits that Article 62 of the constitution establishes legal framework governing public land. He stated that public land does not belong to individuals but is held in trust for the citizens and administered on their behalf. Therefore, disposition of public land must be in a manner that is transparent and consistent with the principles of public participation and good governance. Further, the land cannot be privatized through irregular allocation that falls short of the constitutional requirements governing its disposition. Any alienation undertaken outside of the law is a nullity and the actions of the Respondents constitute unlawful deprivation of public land liable to impeachment by court. In so The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 3/8

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submitting, the Petitioner relies on the case of African Line Transport Co. V Attorney The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 4/8

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General [2007]eKLR. 18. According to the Petitioner, the National values and principles entrenched in Article 10 of the constitution are binding and must guide every decision concerning public land. Equally, Article 60(1) of the constitution establishes the principle of land policy in Kenya, including equitable access to land. These principles require public institutions involved in land administration to ensure that land is not alienated in a manner that undermines public confidence. The Petitioner further submits that the 1st Respondent’s title is marred with illegalities as the title was issued before the letter of allotment. 19. The Petitioner further submits that they had long settled on the suit parcel and this is the only place that is known to him as residence. He submits that neither himself nor the occupants were notified of any allocation of the land and contends that no evidence has been placed before court to demonstrate that proper procedure was followed in setting apart and allocation of the land that was public land. The Petitioner relies on the case of Funzi Island Development Limited v County Council of Kwale & 2 Others [2014]eKLR. 20. The Petitioner submits that his right to property under Article 40 of the constitution has been infringed. He contends that he has been in continuous occupation of the suit parcel which he has treated as home and therefore has legitimate expectation of security of tenure and protection under the constitution. He argues that the threatened deprivation of his property without being granted an opportunity to be heard are an affront to his rights under Article 47 of the constitution. The Petitioner relies on the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016]eKLR. 21. The Petitioner therefore urges the court to find the impugned allocation and resultant title are unlawful and grant the reliefs sought in the Petition. 1st and 2nd Respondents’ submissions 22. The 1st and 2nd Respondents submit that the Petition is devoid of merit and amounts to an abuse of the court process. According to the Respondents a Constitutional Petition has to sufficiently identify the right alleged to be violated, the party responsible for the violation and the manner in which the violation occurred. The Respondents relied on the case of Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) and Mwakaneno v Registrar of Titles, Mombasa & 7 Others [2026] KECA 296 (KLR). 23. The Respondents further submit that Articles 22, 23 and 165(3)(b) confers jurisdiction upon court and do not constitute rights and freedoms enshrined under Part 2 of Chapter Four of the Constitution. They contend that the reference made to Article 40 by the Petitioner is vague since it does not identify the particular conduct of each Respondent that allegedly infringed his right to property. The Respondents have also raised issue as to whether the petition is by Utange Residents or on their behalf given that the petition has not been presented as public interest petition. 24. The Respondents contend that that the liberal reliance of the Petitioner on the Fair Administrative Action Act and Section 26 of the Land Registration Act demonstrates that The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 5/8

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the The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 6/8

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issues raised in the petition can be canvassed through ordinary statutory mechanisms. Reliance was placed on Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another [2016] KECA 411 (KLR). 25. The Petitioners submit that the present Petition concerns the same property and substantially the same dispute that had previously been determined by the Court in Mombasa ELC Petition No. 6 of 2018, formerly Mombasa High Court Constitutional Petition No. 85 of 2012. They submit that the former petition challenged the 1st Respondent’s title to L.R. No. 17906/Section 1/Mainland North, formerly Plot No. 331/Section 1/Mainland North and the same was dismissed via judgment dated 14th January 2019. According to the Respondents the petition is res judicata because t the subject property was the same, the matter pertains the validity of the 1st Respondents proprietorship and parties were identical or were litigating through parties who participated in earlier proceedings. They rely on Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR) and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR]. 26. The respondents equally point out that the Petitioner, allegedly together with some family members challenged the 1st Respondents title and sought cancellation in Mombasa Chief Magistrate ELC E 449 of 2023 and the suit was dismissed. According to the Respondents failure to disclose the previous litigation constitutes an abuse of the court process. 27. As regards the role of National Land Commission, the Respondents submit that the 5th Respondent could not take it upon itself to make an inquiry and issue recommendations which would result into undermining the judgment of 14th January 2019 particularly having been party to the earlier proceedings. In so submitting, the Respondent relies on the case of Robert Mutiso Lelli and Cabin Crew Investments Ltd v National Land Commission & 3 Others [2017] KEHC 5972 (KLR) and Tom Mboya Odege v Edick Peter Omondi Anyanga & 2 Others [2018] KECA 611 (KLR). 28. The Respondents submit that while the Petitioner has asserted historical connection to the suit property, no cogent evidence has been presented to support the assertions, including title documents, postal searches and third-party correspondences, to demonstrate his historical connection to the property. 29. Lastly, the Respondents submit that the Petition is an attempt to circumvent the ordinary statutory and judicial mechanisms available for resolving disputes relating to title and allocation of land. They point out that the Petitioner had previously pursued an ordinary land suit concerning the same property but, following its dismissal, had instead invoked the constitutional jurisdiction of the Court. The Respondents note that the alleged property has already been subdivided and transferred to third parties, however the parties have not been enjoined despite the orders sought having the potential to affect their proprietary interests. 30. On the foregoing grounds, the 1st and 2nd Respondents urge the Court to find that the The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 7/8

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Petition is incompetent, constitutes an abuse of the court process and is barred by the doctrine of res judicata, therefore it should be dismissed with costs. Analysis and determination 31. This court has looked at the pleadings filed, the evidence on record and the submissions filed by the Petitioner and the following issues are to be determined. a) Whether the Petitioner’s rights and fundamental freedoms were violated. b) Whether the Petitioner is entitled to the orders sought in the Petition. 32. It is the Petitioner's case that he has been in longstanding occupation of the suit portion that which was government owned. Notwithstanding his occupation, the suit portion has been transferred to the 1st and 2nd Respondents. Particularly, the Petitioner takes issue with the fact that the title to the land was issued on 1st September 2010 and the letter of allotment issued on 7th September 2020. He questions the legality with which the suit portion was transferred to the 1st and 2nd Respondent. Further, he contends that his removal from property that he has considered as home would infringe his right to ownership and property. 33. The 1st and 2nd Respondent on the other hand contend that the Respondent has failed to sufficiently identify the constitutional rights that have been allegedly breached, the nature of violation and the party responsible for the breach as required of a constitutional petition. According to the Respondents the general reliance on the Fair Administrative Actions Act and Section 26 of the Land registration Act demonstrates that the grievance raised by the Petitioner can be canvassed through ordinary mechanisms. Further the issues raised in the petition is res judicata. Although the Petitioner asserts a claim of occupation in the suit property, no evidence has been adduced to established the alleged occupation. 34. Article 40 of the Constitution of Kenya 2010 provides thus; (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property (a)of any description; and (b)in any part of Kenya. (2) Parliament shall not enact a law that permits the State or any person (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4) (3)...... 35. Article 40 of the constitution affords a party protection against arbitrary deprivation of an interest or right over property. However, before a claim under this provision is enforced, a petitioner has to first demonstrate that he has proprietary interest over the property and the interest has to be legally recognizable. The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 8/8

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36. In the instant petition, the Petitioners claim to the suit property is hinged on his The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 9/8

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longstanding occupation and the fact that the deceased parents had settled on the property. However, mere occupation of Government land does not confer ownership or proprietary interest. In the absence of a legally recognizable interest in the property, the court is unable to establish the right to ownership recognized under Article 40 of the constitution. This position is consistent with the finding in the case of Moses Kiptoo Rono & another v Chief Land Registrar & 5 others [2018] KEELC 3373 (KLR) where the court stated that; Article 40 of the Constitution protects property rights. In order to enforce this right, a party must demonstrate that it is entitled to the property in issue and clearly show the proprietary interest sought to be protected. 37. Having failed to demonstrate proprietary interest in the suit property this court finds that no deprivation of the right to property has been established by the Petitioner within the meaning of Article 40 of the constitution. 38. It is not lost on the court that the Petitioner has raised issue with the fact that the Title of the suit portion was issued to the 1st and 2nd Respondent before issuance of the alleged letter of allotment. In the courts view, the contention raises validity of the process through which the 1st and 2nd Respondents acquired the property. Determining whether the title issued thereof was valid, would require the court to interrogate issues to do with the legality of acquisition process, which is not necessary for determination of alleged constitutional violation, especially having found that the Petitioner has not established proprietary rights capable of prospection under Article 40 of the Constitution of Kenya. The court is guided by the principle of constitutional avoidance and finds that these issues can be properly addressed through relevant statutory frameworks. In the case of Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR, the court stated: 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 redress under such other legal regime rather than trivialize constitutional litigation. In a string of cases, this Court has severally held that where a fundamental right is regulated by legislation, such legislation, and not the underlying constitutional right, becomes the primary means for giving effect to the constitutional rights. However, it has since emerged on the authorities that constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional Litigation is not a panacea for all manner of litigation; we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes. 39. This court finds that the Petitioner has failed to demonstrate proprietary interest in the suit portion that can be afforded protection under Article 40 of the constitution, the court finds that the violation of the right to property has not been established. The Petition is The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 10/ 8

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devoid of merit and is dismissed with costs to the 1st and 2nd Respondents. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 17:00:38 The Judiciary of Kenya Doc IDENTITY: 3852382306011611552724651690 Tracking Number:OOEHBM2026 11/ 8

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