Law Society of Kenya & 3 others v Presbyterian Foundation (PCEA) Rugithi Women's Guild & 4 others

THE NATIONAL LAND COMMISSION………....….......……4TH RESPONDENT THE HON. ATTORNEY GENERAL…………......………….....5TH RESPONDENT AND CABINET SECRETARY, MINISTRY OF EDUCATION….1ST INTERESTED PARTY ETHICS AND ANTI-CORRUPTION COMMISSION….2ND INTERESTED PARTY DEPUTY COUNTY COMMISSIONER, KIKUYU SUB COUNTY…………………………………………….3RD INTERESTED PARTY JUDGMENT 1. Vide a Petition dated 7/11/2023, the Petitioners request the Court to grant the orders: a) A declaration that the subject land L.R. No. KARAI/KARAI/350 is public land under Article 62 of the Constitution for educational purposes/in trust for pupils at Kanyiha, Lusigetti and Njumbi Primary School in Kikuyu, Kiambu County. b) A declaration that the transfer of land L.R. No. KARAI/KARAI/350 by the 2nd Respondent to the 1st Respondent on 6th December 2001 was null and void ab initio and ineffectual to confer any right, interest or title upon the 2nd Respondent in the first instance ELCLPET. NO. E003 OF 2023 2|Page

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c) An order of mandamus directed to the 3 rd Respondent to cancel/revoke the title over L.R. No. KARAI/KARAI/350 issued to the 1st Respondent on 6th December 2001. d) An order of mandamus directed to the 3 rd Respondent to transfer the L.R. No. KARAI/KARAI/350 to the 2 nd, 3rd and 4th Petitioners. e) A permanent injunction restraining the 1 st Respondent, by herself, her agents, servants or assigns restraining transferring, her from charging, developing, possession, or any other manner dealing interfering with the or in entering into, taking howsoever subject parcel KARAI/KARAI/350. f) Any other order as the Court may deem fit in the interests of justice. g) Costs of the Petition. Petitioners’ Case 13. The Petitioners KARAI/KARAI/350, contend hereinafter that referred land parcel to “suit as property,” is used as a school playing field by three public schools and is subject to a historical land injustice claim. They aver that the suit property, which is 1.1 hectares, was allocated in 1957 by the defunct County Council of Kiambu for use as a school playing field/public utility and that since 1972, ELCLPET. NO. E003 OF 2023 3|Page

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attempts were made to grab the land prompting public protests and complaints. 14. They allege that in 2015, a directive required schools to secure titles in their names and the Petitioners sought compliance however, despite the directive, the 1 st Respondent obtained title to the suit property in 2001. The Petitioners further state that records show the PCEA Ruthigiti Women’s Guild applied for allocation in May 2000, but the process was irregular and that in May 2019, the Deputy County Commissioner placed a restriction on the land due to public interest concerns. 15. It is the Petitioners case that they wrote to the National Land Commission, Ministry of Education, and EACC seeking reversal of the allocation, without success and that in July 2019, EACC requested documents from the 1 st Respondent and directed the Land Registrar to restrict dealings pending investigations. 16. They allege that the County Government of Kiambu has been evasive and failed to provide documentation on the transfer of the suit property and in 2021, the 1 st Respondent filed suit in Kikuyu CMELCC E.038 of 2021 seeking removal of the caution, which matter is pending. They further aver that the 1st Respondent delivered construction materials to the suit property, raising fears of imminent development which would harm the rights of 1,300 pupils to education, growth and play. ELCLPET. NO. E003 OF 2023 4|Page

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17. Petitioners argue the land should revert to public use as a school playing field, held in trust for pupils and future generations. 18. They also aver that the suit property is valued at approximately Kshs. 60 million. 19. The Petition is firmly anchored on the Constitution of Kenya, 2010. First, it relies on Articles 1, 2, and 3, which collectively affirm that sovereign power belongs to the people of Kenya, establish the supremacy of the Constitution as binding on all persons and State organs, and impose a personal and civic duty on every individual to respect, uphold, and defend it. Second, the Petition draws from Article 10, which sets out the national values and principles of governance that bind all State organs, State officers, public officers, and all persons whenever they apply or interpret the Constitution, enact or apply any law, or make or implement public policy participation, decisions—specifically equity, social highlighting justice, public transparency, accountability, and sustainable development. 20.Third, the Petitioners invoke Article 20, which renders the Bill of Rights applicable to all law and binding on all State organs and persons, alongside Article 21(3), which places a mandatory affirmative duty on the State and all public officers to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, ELCLPET. NO. E003 OF 2023 children, youth, members of minority 5|Page or

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marginalized communities, and members of particular ethnic, religious or cultural communities. Fourth, the suit relies on Articles 22 and 258, which grant broad locus standi to the Petitioners to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened, or claiming that the Constitution has been violated or is threatened with violation. 21.Beyond these constitutional foundations, the Petitioners' case is also founded on statutory and educational frameworks that define the legal mandates of the parties, the governance of public institutions, and the statutory obligations surrounding public land management. 22.In addition to the constitutional grounds, the Petition is firmly rooted in statutory and educational frameworks that define the legal mandates of the parties, enforce social and economic rights, and safeguard public educational resources. 23.First, the Petitioners rely on Section 3 of the Law Society of Kenya Act, 2014, which establishes the 1st Petitioner as a body corporate, read together with Section 4 of the Act, which explicitly mandates it to uphold the Constitution, advance the rule of law, protect the public interest, and assist the Courts in the administration of justice. 24.Second, the 2nd to 4th Petitioners derives their locus standi and statutory mandates from Section 59 of the Basic Education Act, No. 14 of 2013. This provision empowers school Boards of Management to act in the best interests of their institutions ELCLPET. NO. E003 OF 2023 6|Page

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and pupils, promote quality education, ensure and assure the provision of adequate physical facilities and resources, manage institutional assets, and institute legal proceedings to safeguard the public interest and the educational welfare of learners. 25.The Petition also invokes the Children Act, 2022, particularly Sections 6, 8, 13, and 14, which secure the rights of children to life, wellbeing, education, leisure, and play and UNCRC Articles 28, 29, and 31, and ACRWC Articles 11 and 12 pursuant to Articles 2(5) and (6) of the Constitution which affirm the rights to education, leisure, and holistic development, complemented by the UNESCO Charter of 1978 which recognizes physical education and sports as fundamental rights. Further, Articles 23 and 165 vest jurisdiction in the High Court to enforce these rights. 26.Third, the suit directly invokes Article 43 of the Constitution, which guarantees economic and social rights, including the right to education, alongside Article 53, which secures every child's fundamental right to free and compulsory basic education. These constitutional guarantees are operationalized through the statutory mechanics of the Basic Education Act. 27.Finally, the Petition anchors its case on Section 73 of the Basic Education Act, which charges the Cabinet Secretary with developing, managing, and monitoring the educational curriculum, together with Section 74, which establishes the Kenya Institute of Curriculum Development (KICD) to ensure ELCLPET. NO. E003 OF 2023 7|Page

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the provision educational and and implementation co-curricular of comprehensive frameworks across basic education institutions. 28. The Petitioners further rely on key land and property provisions under the Constitution and land statutes to challenge the propriety of the acquisition. 29. First, they invoke Article 40(6) of the Constitution, which explicitly excludes unlawfully acquired property from constitutional protection, read together with Article 66, which empowers the State to regulate the use of any land in the interest of defense, public safety, public order, public morality, public health, or land use planning. 30. Second, the Petition anchors on Article 67 of the Constitution, which establishes the National Land Commission (NLC) and tasks it with managing public land on behalf of the National and County Governments, conducting reviews of historical land grants and dispositions, overseeing compulsory acquisition, and investigating historical land injustices. 31. Third, they cite Article 68 of the Constitution, which directs Parliament to enact legislation enabling the review of grants and dispositions of public land to establish their propriety or legality. This constitutional command is operationalized through Section 14 of the National Land Commission Act, which empowers the NLC to investigate historical land allocations made irregularly or illegally. ELCLPET. NO. E003 OF 2023 8|Page

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32.Fourth, the suit relies on Section 80(1) of the Land Registration Act, 2012, which empowers the Court to order the cancellation or amendment of any registration on the land register where such entry has been obtained or made by fraud, mistake, or illegality, alongside the statutory definitions under the Land Act, 2012 regarding public land reserves and the unlawfulness of alienating land designated for public utility. 33.Finally, the Petitioners invoke Article 162(2)(b) of the Constitution, read together with the Environment and Land Court Act, which confers exclusive original and appellate jurisdiction on the Environment and Land Court to hear and determine disputes relating to environmental planning and governance, land use, title, occupation, and tenure. 34.In the Supporting Affidavit, sworn by one Peter Chege Rubia, the Petitioners' position is reaffirmed, and several documents are annexed in support of their claim. 35.First, the deponent annexes a copy of the land development plan, Survey Map Sheet No. 16, and various accompanying letters marked as "PCR-1a-e". Second, he produces copies of protest and follow-up letters marked as "PCR-2". Third, he attaches a copy of the ministerial directive marked as "PCR3". 36.Fourth, the Affidavit annexes a collection of title and land registry documents marked as "PCR-4 a-g", which comprise a copy of an official search dated 24/02/2015, the title deed ELCLPET. NO. E003 OF 2023 9|Page

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issued on 6/12/2001, an extract of council minutes dated 29/11/2001, an official search dated 21/06/ 2001, the application letter submitted by the 1 st Respondent alongside two extracts of Council Minutes dated 2000, and a copy of the Green Card dated 24/06/2001. 37.Fifth, the deponent annexes a copy of an official search dated 8/08/019 and a letter dated 28/04/2019, collectively marked as "PCR-5 a-b". Sixth, he attaches copies of further follow-up correspondence marked as "PCR-6 a-c". Seventh, he produces a copy of a letter addressed to the 2 nd Respondent dated 2/06/2021, marked as "PCR-7". Finally, the affidavit includes copies of an excerpt plaint, a case tracking system printout, an investigation report, and an excerpt defense, marked as "PCR 8 a-c". Petitioners’ Evidence 38.The Petitioners testified as PW1 and adopted his Affidavit dated 7/11/023 as his evidence in chief and also asked the Court to adopt his list of documents dated 19/03/2025, as exhibits to be marked as “PW1 Exh 1-96”. 39.It was the evidence of PW1 that although he asserted the defunct County Council of Kiambu had allocated the suit property to the 2nd to 4th Respondents (the three schools), he produced no documentary proof of such allocation, nor evidence that the children used the land as a playing field. He stated that the District Commissioner’s office, the Ethics and Anti-Corruption Commission, and the Area Chief had reported ELCLPET. NO. E003 OF 2023 10 | P a g e

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to the Land Registry that the 1st Respondent acquired the property through corrupt means, but no response was forthcoming. Referring to minutes at page 61, he acknowledged that the request for allocation to the schools was rejected and instead granted to AICPA Women Guild, and admitted he had not presented minutes showing otherwise. He confirmed that he testified on behalf of the Petitioners with authority evidenced at page 21 of their trial bundle, and cited photographs at pages 95 and 96 showing stones deposited by the 1st Respondent and a Ministry of Education signboard, which he later found missing. 40.On re-examination, he referred to maps at pages 27 and 28 marking parcel No. 350 as a school field adjacent to the 2 nd to 4th Petitioners, reiterated that he had reported the matter to the District Commissioner, EACC, Registrar, NLC, and Chief, and pointed to a letter at page 47 from the EACC forwarding the dispute to the Commissioner of Lands. He explained that the schools had initially used the property as a farm before converting it into a games field, and denied that the County Council had rejected their allotment request, clarifying that the minutes at page 62 referred to an application that was not the Petitioners’ and whose applicant he did not know. 41. Counsel for the Petitioners thereafter closed the Petitioners’ case. 42.The parties were directed to file and exchange written submissions ELCLPET. NO. E003 OF 2023 11 | P a g e

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Petitioners’ Submissions 43.The Petitioners filed written submissions dated 4/05/2026. 44.The Petitioners, through their Counsel, submit that the suit property is public land pursuant to Article 62 of the Constitution of Kenya, 2010 and Section 2 of the Land Act, 2012, and was set aside for the purpose of being a school playing field. They anchor their position in several judicial authorities. 45.First, they rely on Muthaiga North Residents Association v. Nyari House Limited; National Land Commission & another (Interested Parties) [2022] KEELC 2578 (KLR), where the Court held that land reserved for public utility is held in trust for the public and is not available for alienation to private entities. Second, they cite Sunshine Villas Limited v. County Government of Kisumu & another; Ethics and Anti-Corruption Commission (Interested Party) [2023] KEELC 21601 (KLR), where the Court observed that any alienation of land reserved for a public purpose to a private person is null and void ab initio. Third, they invoke Kenya Airports Authority v. Chief Land Registrar & 3 others [2024] KEELC 575 (KLR), where the Court stated that land set aside and reserved for a public purpose cannot be allotted to individuals or private entities. 46.From the foregoing, the Petitioners argue that allocation of the suit property to serve as a playing field to the 2 nd to 4th Petitioner’s schools came first and that the 1 st Respondent ELCLPET. NO. E003 OF 2023 12 | P a g e

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knew the land was reserved and further that Maps and letters, as seen in the Petitioners’ annexures, confirm that the suit property was marked as a school field. Additionally, the Petitioners state that witness testimony by the 2 nd Interested Party’s witness, who is a Land surveyor, corroborates what has been set forth. As such, the Petitioners maintain that the suit property was held in trust by Kiambu County Council for the schools, thus making the alienation unlawful. 47.The Petitioners further contend that the 1 st Respondent failed to observe mandatory statutory procedures prescribed by the Government Lands Act, as the 1 st and 2nd Respondent testified to the Court that no notices were issued to the community and/or the public and that no consultations were done. 48. They argue that at the material time, the disposition of unalienated Government land was governed by the Government Lands Act (Cap 280 (repealed), and Section 3 thereof provides that only the President could alienate unalienated government land. Further, Section 2 of the Act defined unalienated government land as land that was not being currently leased to any person or in respect of which the Commissioner had not issued any letters of allotment. They also invoke Section 12 (1) of the Land Act No. 6 of 2012, which provides that public land allocation requires a development plan prepared by the National Land Commission. Consequently, the Petitioners state that under both the repealed and current law it is evident that public land could ELCLPET. NO. E003 OF 2023 13 | P a g e

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not be alienated without strict compliance with statutory procedures. 49.The Petitioners also cite Kenya Anti-Corruption Commission v Gigiri Court Limited & 3 others [2025] KEELC 7315 (KLR) where the learned Judge, citing James Joram Nyaga & Another v The Attorney General & Another [2007] eKLR, stated that a President and Commissioner had no power to alienate land set aside for public purpose and that such allocation is void ab initio. 50.The Petitioners maintain that the suit property was reserved for schools and thus fell outside the ambit of “unalienated government land” meaning of Section 2 of Government Lands Act (Cap. 280 (repealed)); for that reason, the alienation was void ab initio. 51. The Petitioners further invoke Section 143 of the Registered Land Act (Cap 300, repealed), Section 80 of the Land Registration Act, 2012, and Section 26 of the Land Registration Act, 2012, which collectively empower the Courts to cancel or amend titles and land register entries obtained through fraud, mistake, or illegality. 52.To support their arguments on the legal standard required to establish fraudulent dealings, they cite Kinyanjui Kamau v. George Kamau [2015] eKLR, where the Court stated that allegations of fraud must be strictly proved to a standard higher than the ordinary balance of probabilities in civil matters. Additionally, they place reliance on Vijay Morjaria v. ELCLPET. NO. E003 OF 2023 14 | P a g e

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Nansingh Madhusingh Darbar & another [2000] eKLR, where the Court observed that fraud must be specifically pleaded in the pleadings and distinctly proved through cogent evidence. 53.From what has been set forth, it is the Petitioners' contention that the allocation and registration of the suit property was fraudulent, irregular, and illegal, and that the title issued to the 1st Respondent was procured through collusion involving officers of the defunct 2nd Respondent acting ultra vires their authority. 54.To buttress their position, they cite Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [2015] eKLR, where the Court stated that established fraud or illegality entitles the Court to cancel the registration of title. They also rely on Chemey Investment Limited v. Attorney General & 2 others [2018] eKLR, where the Court held that a fraudulent acquisition confers no proprietary interest on the holder. Finally, they invoke John Peter Mureithi & 2 others v. Attorney General & 4 others [2006] eKLR, where it was noted that Courts must resist sanctifying private greed over public good. 55.On the issue of costs, the Petitioners submit that they deserve the costs awarded to them and place reliance on Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR where the Court observed that costs in public interest litigation are discretionary. ELCLPET. NO. E003 OF 2023 15 | P a g e

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56. In conclusion, the Petitioners pray that the Court grants the prayers sought in the Petition. 1st Respondent’s Case 57.The 1st Respondent contests the Petition vide an Answer to the Petition dated 5/02/2025. 58.It avers that the suit property is duly registered in its favour, with a title deed lawfully issued on 6/12/2001. Before registration, the property was owned by the County Council of Kiambu and designated as a playground. 59. It states that after conducting due diligence and confirming the property belonged to the County Council, it applied for allocation on 23/05/2000, citing the need for a playground for its school. 60.It further contends that the application was approved by the Works, Town Planning, Markets & Housing Committee on 14/09/2000, and it has been in continuous and uninterrupted possession since then. 61. The 1st Respondent categorically denies acquiring the property through fraudulent or illegal means, challenges the Petitioners to strict proof, and denies infringing on children’s rights under the Children Act 2022. It maintains that its students have used the playground for the past 20 years. 62.It argues that if the Petitioners had a legitimate claim, they should have pursued it earlier or obtained title while the land was still under the County Council. Further that no evidence ELCLPET. NO. E003 OF 2023 16 | P a g e

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has been presented to show the property was ever allocated to the schools or that a title deed was issued in their favour. 63.The 1st Respondent contends that the schools already have playgrounds within their own locations, and the suit property is situated at a considerable distance, making it impractical for them to share. 64.It also notes that the Petitioners lodged a caution against the property on Commissioner, 28/05/20219 which through the unjustifiably Deputy County the 1 st Petition as restricts Respondent’s enjoyment of its lawful rights. 65.The 1st Respondent characterizes the unmeritorious, frivolous, and a misuse of judicial process aimed at unlawfully appropriating its property. 66.In conclusion, it prays the Court to declare it a lawful and rightful owner of the suit property, an order of permanent injunction restraining the Petitioners from interfering with the property and an order for removal of caution placed on the property. 1st Respondent’s Evidence 67.The 1st Respondent testified as DW1 and adopted his witness statement dated 17/03/2025 as his evidence in chief and also produced his list of documents dated 18/03/2025 as exhibits to be marked as “DW1 Exh 1-15” as evidence before the Honourable Court. 68.On cross-examination, he testified that the 1 st Respondent applied for allotment of the suit property by writing to the ELCLPET. NO. E003 OF 2023 17 | P a g e

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defunct 2nd Respondent, and admitted that no consideration was made. He explained that the 1st Respondent conducted due diligence and found that the suit property was designated as a children’s playground and belonging to the defunct 2 nd Respondent. He added that he was unaware whether meetings of the Council were attended by representatives of the 1 st Respondent. He also referred to minutes at page 6, signed by the Committee Clerk and County Clerk, which did not record attendees, and confirmed that the Petitioners sought allotment of the property for use as a school playground. 69.He acknowledged that the 1st Respondent had no letters of allotment and had not paid for the property, though stamp duty was paid without producing a receipt. Further that while the 1st Respondent had enjoyed continuous occupation, it was no longer in possession due to a caution lodged against the property. 70.He further admitted that the 1 st Respondent had not paid land rates and had not applied for change of user, and that although a copy of the title at page 1 showed a serial number, no documents were produced to prove the 1st Respondent’s school’s existence. 71. On re-examination, he pointed to the Green Card at page 3 showing that title was issued on 6/12/2001, consistent with the copy of title, and explained that the 2 nd to 4th Petitioners had lodged a complaint resulting in the caution. He reiterated that they applied for allotment on 323/05/2000, which the ELCLPET. NO. E003 OF 2023 18 | P a g e

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Council approved, distinguishing this from a letter dated 21/11/1972 at page 29, and clarified that attendance at Council meetings was not required of applicants. 1st Respondent’s Submissions 72. At the time of writing this decision the 1 st Respondent has not filed any submissions. 2nd Respondent’s Case 73.The 2nd Respondent contests the Petition vide a Replying Affidavit sworn on 22/04/024 by one Moses Njenga. 74.The deponent avers that he is the Land Administrator with the 2nd Respondent and that he has perused the Petition dated 7/11/2023 and confirmed that the minutes sought by the Petitioners relate to the suit property. 75.He states that records show the property was first allocated to one Mugo Karanja during a Local Land Board meeting held on 9/10/1957 and annexes a certified extract of the minutes marked as “MNI”. 76.He further depones that during an ordinary meeting of the Works, Town Planning, Markets and Housing Committee on 14/09/2000, an application for allocation of the suit property measuring 1.1 hectares was made by P.C.E.A. Ruthigiti Women’s Guild and was approved, with certified minutes annexed as “MN2”, and that the minutes were subsequently adopted by the full council on 12/10/2000. 77. He contends that the minutes produced by the Petitioners (marked PCR 4 a–g) are not certified and therefore cannot be ELCLPET. NO. E003 OF 2023 19 | P a g e

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relied upon as true records of the suit property. He also denies allegations that the 2nd Respondent had been evasive or had refused to provide documents, asserting instead that the certified minutes records. He annexed emphasizes represent that upon the only perusal of available the 2 nd Respondent’s records, there are no minutes showing allocation or requests for allocation of the suit property by the 2 nd to 4th Petitioners. 78.He concluded by affirming that the facts deponed to are true to the best of his knowledge and belief, save for matters disclosed from other sources. 2nd Respondent’s Evidence 79.The 2nd Respondent testified as DW2 and adopted his Replying Affidavit dated 22/04/2024 as his evidence in chief and also produced minutes as exhibits before the Honourable Court. 80.On cross-examination, he stated that the suit property had initially been allocated to one Mugo Karanja as reflected in the minutes, showing that as early as 1957 the property was owned by him. He noted that at, in paragraph 51, the record indicates the 1st Respondent later applied for the property and that the defunct 2nd Respondent approved the application, though he was unaware whether any supporting documents were submitted or what procedure was followed in allocating public land to a private entity. He further testified that according to the map, the property was reserved for use as a school playing field, yet the 1st Respondent is not a school and ELCLPET. NO. E003 OF 2023 20 | P a g e

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therefore would not require such a facility. He further explained that the land had reverted to the County after the original allottee failed to pay land rates, but he did not know whether the 1st Respondent had ever paid any rates. 2nd Respondent’s Submissions 81. The 2nd Respondent has not filed any submissions. 2nd Interested Party’s Evidence 82.The 2nd Interested Party testified as DW3 and adopted his Replying Affidavit dated 18/03/2025 as his evidence in chief and also produced a map of survey as exhibit marked as “MM1”. 83.He testified that the map in their custody shows the suit property was reserved as a school playing field, which in his view confirms it is public property. 84.On cross-examination, he maintained that the land was public, though the map itself does not expressly indicate this. He explained that the council had allocated land as early as 1957, and questioned how the property was later allocated to the 1st Respondent. He stated that the land had reverted to the County Council of Kiambu before being reallocated, but admitted he had no minutes to support the reversion claim. 85.He acknowledged that the 1st Respondent applied to the County Council and that the application was tabled before a committee of councilors and officers, though he did not produce minutes showing attendance. He emphasized that before transfer to the 1 st Respondent, the property was ELCLPET. NO. E003 OF 2023 21 | P a g e

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registered in the name of the council as public land, whereas the 1st Respondent is a private entity. He further admitted to not knowing the procedure for converting public land to private ownership, nor whether any consideration was paid for the suit property. He also confirmed that the maps at pages 27 and 28 of the Petitioners’ bundle correctly show the property marked as a school playing field. 86.He further stated that the property had initially been allocated to one Mugo Karanja, but since no title was issued, it reverted to the council and was later allocated to the 1 st Respondent. He explained that, according to council practice, no allocation was made without an application, and anyone could apply for land. He therefore did not consider the council’s allocation to the 1st Respondent to be illegal. He added that the land was originally registered in the County Council’s name before transfer, and that consideration was not always required for allocation. 87.On re-examination, he clarified that while most parcels are not expressly marked as public land, maps usually note public use, and that in this case the map clearly designates the property as a school playing field. In conclusion he confirmed that the map he produced was the only map of the suit property. 2nd Interested Party’s Submissions ELCLPET. NO. E003 OF 2023 22 | P a g e

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88.The 2nd Interested Party filed written submissions dated 28/07/2026 through its Counsel submit that the suit property and was held in trust for the 2nd to 4th Petitioners’ schools. 89.The Petitioners refer to the definition of public land under Article 62 of the Constitution of Kenya and Section 6(2) of the Act which vests the County Government in trust for the people resident in the county and administer it on behalf the National Land Commission and Section 6(4) which prohibits alienation of public land shall not be except in terms of an Act of Parliament. It also cites Section 26 of the Land Registration Act, which provides that title is prima facie evidence of ownership but can be challenged if obtained by fraud, misrepresentation, illegality, or corrupt scheme. 90. To solidify its position, the second Interested Party relies on several legal precedents establishing the protected status of public land. First, in R v NLC ex-parte Giraffe View Estate Ltd, County Government of Nairobi & 5 Others, [2020] KEELC 2364 (KLR) (Environment and Land Miscellaneous Application 44 of 2018) the Court affirmed that land explicitly designated for a specific purpose becomes alienated and is strictly unavailable for private allocation. This principle is reinforced by Republic v Commissioner of Lands & 4 Others, ex-parte Associated Steel Limited, [2014] KEHC 2498 (KLR) ([2014] eKLR, which underscored that property set aside for public utility is held in trust and shielded from any further alienation. Finally, the second ELCLPET. NO. E003 OF 2023 23 | P a g e

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Interested Party points to Dorcas Atieno Rajoru & 145 Others v Mjahid Sub-chairman Harambee Maweni Committee SHG & 2 Others, [2016] KEELC 554 (KLR) where the Court reiterated that the government holds public utility plots in trust specifically for the benefit of local residents. It is the 2nd Interested Party’s case that the suit property was reserved as a school playing field, as evidenced by the Registry Index Map produced by DW3, who is a Government Surveyor, during his testimony to the Court; therefore, the suit property was not available for private allocation. 91.It further cites Republic v Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others (Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563) where it was stated that Courts should nullify titles obtained by land grabbers and that indefeasibility cannot protect unlawful acquisition. Public trust doctrine prevails. 92.The 2nd Interested Party argues that the testimony of PW1 and DW3 establishes several factual points about the suit property being that the suit property is currently used as a school playing field serving over 1,300 students from 3 primary schools in Kikuyu, that the suit property measures about 1.1 hectares and was allocated to the schools in 1957 and subsequently fenced in 1972, that the 1 st Respondent was registered as proprietor of the property on 6/12/2001 which ELCLPET. NO. E003 OF 2023 24 | P a g e

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allegation is supported by a certificate of title and official search, that records show that on 1/03/1973 the suit property was registered in the name of the defunct 2 nd Respondent as evidenced in the Green Card and that on 22/05/2000, the 1 st Respondent applied for allocation of the property to the clerk of the defunct 2nd Respondent despite its designation as a school playing field. Further that an unsigned letter dated 23/05/2000 suggests that the Respondent intended to develop the suit property for private benefit against Public Interest. 93.It further contends that the Petition herein is merited since the suit property was public land reserved for school use and thus not available for private allocation, making the issuance of title to the 1st Respondent a fraudulent, corrupt and void exercise. It also argues that the defunct 2 nd Respondent exceeding its statutory authority amounts to abuse of office and disregard of land law procedures. 94.The 2nd Interested Party submits that the evidence shows that the 1st Respondent’s title allocation was obtained illegally and through a corrupt scheme as there was no proof of lawful allocation; no rent/rates paid, no letter of offer, no acceptance and no consideration was paid to the defunct 2 nd Respondent. It further highlights alleged irregularities which include; no change of user from public land to private land, no evidence of stamp duty payment before registration, DW1 admission that the 1st Respondent is a Church not a school and failed to prove it owned a school, DW1 production of an incomplete title copy ELCLPET. NO. E003 OF 2023 25 | P a g e

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lacking require entries and serial numbers which make it authentic, and invokes Section 26(1)(b) of the Land Registration Act. 95.To further support its position, the 2 nd Interested Party points to a body of case law establishing that unlawfully acquired land cannot be protected simply by holding a title deed. 96.In Kenya Anti-Corruption Commission v Gigiri Court Limited & 3 Others [2025] KEELC 7315 (KLR)), the Court observed that public property acquired unlawfully or alienated irregularly cannot be protected by the shield of title, noting that Courts must deny protection to such acquisitions under Article 40(6) of the Constitution, which expressly excludes unlawfully acquired property from constitutional protection. This stance aligns with Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 Others [2019] KEELC 4680 (KLR) where Mativo J (as he then was), held that public property unlawfully acquired cannot be shielded by indefeasibility of title, and that Courts are enjoined by Article 40(6) to deny protection to irregular or fraudulent acquisitions. 97.This principle is reinforced by Munyu Maina v Hiram Gathiha Maina [2013] eKLR, which affirms that title deeds are not conclusive proof of ownership when the underlying acquisition is disputed. Finally, the party relies on Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR, where the Court observed that illegal acquisitions cannot benefit from indefeasibility ELCLPET. NO. E003 OF 2023 26 | P a g e

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because no one can transfer a better title than they actually possess. 98.From the foregoing, the 2 nd Interested Party argues that the Petitioners should be granted the remedies sought as they are supported by the evidence on record. It makes reference to Section 80 of the Land Registration Act, which empowers the Court to cancel illegally acquired titles and restore the property to its rightful owner and also allows rectification of the register if registration was obtained by fraud or mistake. 99.It also cites in support of its position, the case of General & Another v Hussein & 3 Others (Civil Appeal 100 (Eld No. 32) of 2018) [2025] KECA 1022 (KLR), where the Court observed that indefeasibility does not protect fraud and that a first registration procured through fraud is void. Additionally, the party points to Kenya National Highway Authority v Shalien Masood Mughal & 5 Others [2017] eKLR, in which the Court stated that Courts cannot allow the public good to be sacrificed to private greed. In conclusion, the 2 nd Interested Party submits that the Petition be allowed with costs. Issues for Determination 100. Upon a critical examination of the Petition, the responses, the evidence, and the statutory and constitutional provisions governing land administration in Kenya, the key issues for determination in this suit are: ELCLPET. NO. E003 OF 2023 27 | P a g e

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i. Whether the suit property, L.R. No. KARAI/KARAI/350, was public land reserved for a public utility purpose (a school playing field) and held in trust by the defunct County Council of Kiambu for the benefit of Kanyiha, Lusigetti, and Njumbi Primary Schools. ii. Whether the allocation, transfer, and subsequent registration of L.R. No. KARAI/KARAI/350 to the 1 st Respondent on 6/12/2001 was procedural, lawful, and valid, or whether it was unlawful, fraudulent, and null and void ab initio. iii. Whether the 1st Respondent’s Title Deed is protected under the doctrine of indefeasibility of title pursuant to Article 40 of the Constitution and Section 26 of the Land Registration Act, 2012. iv. What appropriate reliefs and remedies ought to be granted by this Court, including the issue of costs. 101. On the first issue whether the Suit Property was Public Land Reserved for Public Utility Purpose Held in Trust; the foundational question before this Court is the legal characterization of L.R. No. KARAI/KARAI/350 prior to its contested registration in the name of the 1 st Respondent. The Petitioners and the 2nd Interested Party contend that the suit property, measuring 1.1 hectares, was public utility land originally reserved as a playing field for primary schools within Kikuyu, Kiambu County. ELCLPET. NO. E003 OF 2023 28 | P a g e

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102.In legal jurisprudence, the doctrine of public trust and the statutory reserve of land for public allocation dictate that once land is dedicated to a specific public purpose or public utility, its status becomes impressed with a trust for the benefit of the community or the designated public entity. 103. To properly analyze the nature of land allocation and public utility status, reference must be made to Black’s Law Dictionary (11th Ed.) which defines public land as: "Land owned by a government, state, or municipality, especially land open to public use or set aside for public facilities or reserves." 104. Furthermore, Black’s Law Dictionary defines an allocation or allotment of public land as: "The setting apart of specific portions of the public domain for a particular public use, community benefit, or official purpose, thereby withdrawing it from general private availability." 105.Similarly, Halsbury’s Laws of England (4th Edition, Volume 36(2), Paragraph 201) outlines the foundational principles governing the dedication of land for public purposes: "Where land has been dedicated by a public authority or local body for a specific public user or public utility, the authority holds such land in the capacity of a trustee for the public. It lacks the statutory capacity to alienate, divert, or dispose of the land for private enterprise or inconsistent ELCLPET. NO. E003 OF 2023 29 | P a g e

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purposes in breach of the trust so established, and any attempted alienation in contravention of the public trust is ultra vires and void." 106. In international and comparative jurisprudence, the sacred nature of land reserved for public utility and the limitations placed on local authorities regarding its conversion have been consistently upheld. In the landmark Indian Supreme Court case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Others (1999) 6 SCC 464, the Supreme Court of India examined the unlawful conversion of a public park and utility space by a local municipal authority for private commercial development, holding verbatim: "The public trust doctrine holds that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be totally unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes... A municipal corporation holds public open spaces and utility land as a trustee for the residents, and any agreement or allocation which converts a public utility area into private ownership is unsustainable in law, illegal, and void ab initio." ELCLPET. NO. E003 OF 2023 30 | P a g e

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107. Likewise, in the Australian High Court decision of Kearney v. Federal Commissioner of Taxation (1985) 158 CLR 500, the Court addressed the legal effect of setting aside land for public purposes, stating verbatim: "When land is reserved or dedicated by statutory authority for a public purpose, it is effectively placed beyond disposition the until reach and of ordinary unless the private statutory reservation is validly revoked in strict compliance with the enabling legislative power. Alienation without prior statutory revocation of the public purpose leaves the grant devoid of legal foundation." 108. In the present case, the evidence presented before this Court specifically the Registry Index Map (RIM) and Survey Map Sheet No. 16 produced by the 2nd Interested Party’s witness; DW3, a Government Surveyor explicitly depicts and designates L.R. No. KARAI/KARAI/350 as a school playing field. While the 2nd Respondent’s witness; DW2 pointed to historical minutes from 1957 suggesting an initial allocation to one Mugo Karanja, DW2 and DW3 both confirmed that no title ever issued to Mugo Karanja, that the land reverted to the local authority, and that the registry maps maintained by the government strictly marked parcel 350 as a school playing field serving the adjacent public primary schools. ELCLPET. NO. E003 OF 2023 31 | P a g e

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109. Under Section 62 of the Constitution of Kenya, 2010, land used or set aside for public utility purposes constitutes public land. Prior to the 2010 Constitution, local authorities held trust land pursuant to the Trust Land Act Cap 288, (repealed) and the Local Government Act Cap 265, (repealed). They were legally bound to hold and administer such land for the benefit of the residents within their jurisdiction. A local authority had no authority to unilaterally divest itself of land set aside for a public playing field and convert it to private ownership without going through formal, statutory procedures of set-aside, user change, and public consultation. 110. Consequently, this Court finds that L.R. No. KARAI/KARAI/350 was public utility land set aside and reserved as a school playing field, held in trust by the defunct County Council of Kiambu for the public benefit and the students of the neighboring schools. 111.On the second issue whether the Allocation and Transfer to the 1st Respondent was procedural, lawful, and valid, having established that the suit property was public utility land reserved for a school playing field, the Court must thus critically analyze the legal validity of its allocation and transfer to the 1st Respondent on 6/12/2001. 112. During the material period (May 2000 to December 2001), the allocation of public and government land was governed by the Government Lands Act (Cap 280, repealed), the Trust Land Act (Cap 288, repealed), and the Registered ELCLPET. NO. E003 OF 2023 32 | P a g e

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Land Act (Cap 300, repealed). Under this statutory regime, public land set aside for public utility was not unalienated government land available for allotment upon simple administrative application. 113. The 1st Respondent’s witness (DW1) admitted in cross- examination that the 1st Respondent merely wrote a letter to the defunct County Council of Kiambu on 232/05/2000 applying for the land; that no letter of allotment from the Commissioner of Lands was issued; that no payment of consideration or purchase price was made; that no land rates were ever paid; that no formal public notices or consultations were published; and that no process for change of user from a public school playing field to private Church/school ownership was ever undertaken. 114. Furthermore, DW2 representing the County Government of Kiambu and DW3, the Government Surveyor conceded that the property was marked as a school playing field on official survey maps, and that the County Council lacked statutory authority to alienate public utility land without compliance with mandatory statutory procedures. 115. The legal consequence of allocating land set aside for a public utility or allocating public land without strictly following statutory procedures is well settled in Kenyan jurisprudence. In the case of Muthaiga North Residents Association v. Nyari House Limited; National Land Commission & ELCLPET. NO. E003 OF 2023 33 | P a g e

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Another (Interested Parties) [2022] KEELC 2578 (KLR), where the Court held: "Land reserved for public utility is held in trust for the public and is not available for allocation to private entities or individuals. Any allotment or alienation of land that is reserved for a public purpose, without formal un-setting apart or statutory degazettement, is ultra vires, null and void, and passes no legal title whatsoever to the beneficiary." 116. the Similarly, on the invalidity of alienating public utility land, Court in Sunshine Villas Limited v. County Government of Kisumu & another; Ethics and AntiCorruption Commission (Interested Party) [2023] KEELC 21601 (KLR) held verbatim: "The law is clear that public land reserved for a specific public purpose cannot be converted to private land through irregular administrative allocations. Alienation of land reserved for a public purpose to a private person is null and void ab initio, and any title resulting therefrom is a nullity which cannot be protected by a Court of law." 117. The prohibition against local authorities or executive officers alienating public reserves was further affirmed in Kenya Airports Authority v. Chief Land Registrar & 3 ELCLPET. NO. E003 OF 2023 34 | P a g e

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Others [2024] KEELC 575 (KLR), where the Court explicitly held verbatim: "Land that has been set aside for a public utility or public institution is beyond the power of allotment by the Commissioner of Lands or local authorities. Any purported allotment of such reserved land to individuals or private corporations is inconsistent with the statutory trust under which the land is held, rendering any title issued pursuant to such allotment void from inception." 118. In Kenya Anti-Corruption Commission v. Gigiri Court Limited & 3 Others [2025] KEELC 7315 (KLR), the Court reiterated the legal standard regarding executive ultra vires allocations, stating verbatim: "Neither the President nor the Commissioner of Lands had any statutory authority to allocate land that was already reserved for a public purpose. Such allocation is void ab initio, as you cannot grant that which you do not have. The doctrine of public trust dictates that public utility land remains dedicated to its intended purpose unless degazetted or un-set apart strictly in accordance with the law." 119. Applying these established principles to the facts before this Court, the defunct County Council of Kiambu possessed no legal authority to allocate L.R. No. KARAI/KARAI/350 to the 1 st ELCLPET. NO. E003 OF 2023 35 | P a g e

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Respondent in 2000. The suit property was already alienated and set aside as a public-school playing field. The purported approval by the Works, Town Planning, Markets & Housing Committee on 14/09/2000 was done ultra vires. It bypassed mandatory statutory procedures under the prevailing land laws, including public participation, valuation, letter of allotment, payment of purchase price/consideration, and formal change of user. 120. As a result, the transfer and allocation of L.R. No. KARAI/KARAI/350 by the 2nd Respondent to the 1st Respondent was illegal, unprocedural, and null and void ab initio. 121.On the third issue whether the 1 st Respondent’s Title Deed is Protected under Indefeasibility of Title. The 1 st Respondent asserts that it holds a title deed issued on 6/12/2001 and is therefore entitled to the protections of indefeasibility of title as an innocent purchaser or registered proprietor. 122.In Kenyan law, the sanctity of title is governed by Article 40(6) of the Constitution of Kenya, 2010, read together with Section 26(1) of the Land Registration Act, No. 3 of 2012 (which replicated Section 143 of the repealed Registered Land Act, Cap 300). 123.Article 40(6) of the Constitution explicitly provides: "The rights under this Article do not extend to any property that has been found to have been unlawfully acquired." 124. Section 26(1) of the Land Registration Act, 2012 provides: ELCLPET. NO. E003 OF 2023 36 | P a g e

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"The certificate of title issued by the Registrar upon registration, or upon a transfer shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner thereof... except (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme." 125. The statutory framework makes it clear that indefeasibility of title is not an absolute shield. Where a title is obtained illegally, unprocedurally, or over public land that was not available for allocation, the title carries no legal protection. 126. In Kenya Anti-Corruption Commission v. Online Enterprises Limited & 4 Others [2019] KEELC 4680 (KLR), Mativo J. (as he then was) addressed the limits of indefeasibility over public land, stating verbatim: "The constitutional protection of private property under Article 40 of the Constitution does not extend to land unlawfully or illegally acquired. Indefeasibility of title cannot be invoked to sanitize an illegal acquisition of public land. Where the initial allocation was void, no valid title can pass, and the Court is under a constitutional duty by virtue of Article 40(6) to strike down such title." ELCLPET. NO. E003 OF 2023 37 | P a g e

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127. This principle was settled by the Court of Appeal in Munyu Maina v. Hiram Gathiha Maina [2013] eKLR, where the Court held verbatim: "We state that title is not a mere piece of paper. Title is an expression of lawful ownership. When a root of title is challenged, the registered proprietor must show that the acquisition was legal and above board. If the land was not available for allocation in the first place, or if the allocation was marred by illegality, the title deed held by the proprietor cannot stand and must be canceled." 128. Similarly, in Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [supra], the Court of Appeal analyzed the effect of irregular acquisitions, observing verbatim: "No legal right can spring from an illegal act. Where an allocation fundamental of illegalities land is tainted and with procedures established by law are bypassed, registered pursuant to such the title allocation is impeachable, and the Courts will not hesitate to order its cancellation to restore the land to its lawful status." 129. Further, in Chemey Investment Limited v. Attorney General & 2 Others [2018] eKLR, the Court emphasized verbatim: ELCLPET. NO. E003 OF 2023 38 | P a g e

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"A party who acquires title to public utility land without compliance with the statutory provisions governing alienation of public land cannot claim to be a bona fide purchaser for value without notice. The law does not protect illegal acquisitions, and such titles are void and liable to cancellation under Section 80 of the Land Registration Act." 130. In John Peter Mureithi & 2 Others v. Attorney General & 4 Others [2006] eKLR, the High Court emphasized the duty of Courts to protect public assets over illegal private titles, holding verbatim: "Courts must resist sanctifying private greed over public good. Where public property is irregularly diverted into private hands under the guise of statutory allocations, the Courts must step in to protect the public interest by declaring such allocations void and ordering the restoration of the property to the public." 131. In the matter before this Court, the 1 st Respondent failed to produce any Letter of Offer, Letter of Allotment, evidence of payment of consideration, receipts for stamp duty, or evidence of a formal change of user. The 1 st Respondent was well aware, or ought to have known upon basic inquiry, that the 1.1hectare parcel was physically adjacent to public primary schools and marked as a school field. One cannot claim to be an innocent purchaser for value without notice when no value ELCLPET. NO. E003 OF 2023 39 | P a g e

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or consideration was ever paid to the government or local authority, and where the land was actively reserved for a public purpose. 132. Under Section 80(1) of the Land Registration Act, 2012, this Court is fully empowered to order the cancellation and revocation of any title entry in the register obtained through fraud, mistake, or illegality. The registration of L.R. No. KARAI/KARAI/350 in the name of the 1st Respondent on 6th December 2001 was entirely illegal and unprocedural. Consequently, the 1st Respondent's title is not indefeasible and must be canceled. 133. The Petitioners have demonstrated that L.R. No. KARAI/KARAI/350 is public land set aside as a school playing field, held in trust for Kanyiha, Lusigetti, and Njumbi Primary Schools and their over 1,300 pupils. The right to education under Article 43 and the rights of children to play, recreation, and holistic development under Article 53 of the Constitution and the Children Act, 2022 require that public educational amenities be protected from unlawful private encroachment. 134. An order of mandamus is appropriate to compel the Land Registrar (3rd Respondent) to cancel the illegal title issued to the 1st Respondent and to register/vest the suit property in the appropriate public entity in trust for the public primary schools. A permanent injunction is likewise necessary to prevent any further interference with the suit land by the 1 st Respondent. ELCLPET. NO. E003 OF 2023 40 | P a g e

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135. On the question of costs, while costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act, this Petition was instituted as public interest litigation aimed at preserving public utility land for school children. In Brian Asin & 2 Others v. Wafula W. Chebukati & 9 Others [2017] eKLR, the Court stated verbatim: "The award of costs in public interest litigation is discretionary. Where litigants approach the Court in good faith constitutional to protect principles, or public the assets, rights of vulnerable groups, they should not be penalized with costs, and where they succeed, they are entitled to recover their costs from the infringing parties." 136. The Petitioners having fully succeeded in this public interest litigation, costs are awarded to the Petitioners to be borne by the 1st Respondent. 137. In light of the detailed analysis, the relevant statutory provisions, and the decided cases cited herein, this Court hereby makes the following final determinations and orders: i) It is hereby declared that the land parcel known as L.R. No. KARAI/KARAI/350 is public land pursuant to Article 62 of the Constitution of Kenya, 2010, reserved for public utility as an educational playing field held in trust for the pupils and management of Kanyiha, Lusigetti, ELCLPET. NO. E003 OF 2023 41 | P a g e

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and Njumbi Primary Schools in Kikuyu, Kiambu County. ii) It is hereby declared that the allocation, transfer, and registration of land parcel L.R. No. KARAI/KARAI/350 by the 2nd Respondent to the 1st Respondent, and the subsequent issuance of a Title Deed on 6/12/2001, was unprocedural, illegal, null and void ab initio, and ineffectual to confer any valid proprietary right, interest, or title upon the 1st Respondent. iii) An Order of Mandamus is hereby Issued directing the 3rd Respondent, the Land Registrar, Kiambu / Chief Land Registrar to forthwith cancel and revoke the Title Deed and all register entries in respect of L.R. No. KARAI/KARAI/350 issued to the 1st Respondent on 6/12/2001 or at any subsequent date. iv) An Order of Mandamus is hereby Issued directing the 3rd Respondent who is the Land Registrar and the National Land Commission to register L.R. No. KARAI/KARAI/350 as publicschool land held in trust for Kanyiha Primary School, Lusigetti Primary School, and Njumbi Primary School under the care of their respective Board of Managements and the Ministry responsible for Education. ELCLPET. NO. E003 OF 2023 42 | P a g e

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v) An Order of Permanent Injunction is hereby Issued restraining the 1st Respondent, whether by herself, her Church officials, agents, servants, assigns, or anyone claiming through her, from entering into, taking possession of, fencing, depositing construction materials upon, transferring, charging, developing, or in any other manner dealing or interfering with land parcel L.R. No. KARAI/KARAI/350. vi) Costs of this Petition are hereby awarded to the Petitioners, to be paid by the 1st Respondent. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA, VIA MICROSOFT TEAMS ON THIS 5TH DAY OF OCTOBER 2026 ……………....……… MOGENI J JUDGE In the Presence of: Mr. Muimi alongside Mr. Kareko for the 1st, 2nd, 3rd and 4th Petitioners Mr. Kihara for the 1st Respondent Interested Parties – Absent Mr. Melita - Court Assistant …………………… ELCLPET. NO. E003 OF 2023 43 | P a g e

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MOGENI J JUDGE ELCLPET. NO. E003 OF 2023 44 | P a g e

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