https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3051

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT GARISSA** **ELCL PET NO. E001 OF 2023** **ABDIRAHMAN IBRAHIM ADAN ……………………………. PETITIONER** **VERSUS** **WAJIR COUNTY GOVERNMENT ……..………………. 1ST RESPONDENT** **LAND REGISTRAR, GARISSA COUNTY ……………… 2ND RESPONDENT** **THE ATTORNEY GENERAL ……………………………. 3RD RESPONDENT** **COUNTY EXECUTIVE MEMBER** **FOR LANDS, WAJIR COUNTY.……….……...………… 4TH RESPONDENT** **ETHICS AND ANTI-CORRUPTION COMMISSION … 5TH RESPONDENT** **JUDGMENT** 1. Abdirahman Ibrahim Adan, the petitioner, instituted the present proceedings through a petition later amended vide the further Amended Petition dated 30th October 2024 against Wajir County Government, the Land Registrar of Garissa County, the Attorney General, the County Executive Committee Member in charge of Lands and Spatial Planning, Wajir County, and the Ethics and Anti-Corruption Commission. The petition concerns **Land Parcel No. R-4417** situated within Wajir County, which the petitioner claims was lawfully allocated to him by the relevant County authorities. 1. The petitioner’s case is that at all material times he was and remains the bona fide allottee and proprietor of the said parcel of land measuring approximately **110 feet by 115 feet**. He states that he applied to the relevant County authorities for allocation of the suit property and that his application was approved through a letter of allotment dated 16th October 2009 issued by the predecessor of the 1st respondent through the office responsible for land administration. According to the petitioner, the allotment was subject to payment of the requisite transfer fees in the sum of **Kshs.11,000/=,** which amount he duly paid and for which he was issued with a receipt dated 22nd October 2009. 1. The petitioner further avers that following the allotment, he continued meeting obligations associated with the property, including payment of land rent to the 1st respondent. In support thereof, he relies on a receipt dated 6th June 2023 acknowledging payment of **Kshs. 3,500/=** as land rent. It is his position that through the allotment, payment of requisite charges, and continued recognition by the County authorities, he acquired a lawful and enforceable proprietary interest over **Parcel No. R-4417**. 2. The gravamen of the petition is that the respondents, either jointly or severally, unlawfully earmarked a public road through the suit property and in the process entered onto the land and demolished part of the perimeter wall which the petitioner had constructed thereon. The petitioner contends that the respondents undertook those actions without his consent, without consultation, without notice, and without compensating him for the loss occasioned. He maintains that the respondents’ actions amounted to unlawful seizure of private property, trespass, and arbitrary interference with his ownership rights. 3. The petitioner complains that despite being public bodies and officers charged with the administration, protection, and regulation of land rights, the respondents acted in a manner that was unlawful, irrational, unreasonable, and unconstitutional. He accuses the respondents of acting with impunity and in total disregard of the Constitution and the law by purporting to interfere with land over which he claims lawful allotment and beneficial ownership. 4. It is the petitioner’s case that the respondents’ actions violated his rights under **Article 40 of the Constitution** by depriving him of his interest in the suit property without compensation and without following any lawful acquisition process. He particularizes the alleged violations as including infringement of his right to own property, enjoy quiet possession thereof, and exercise incidents of ownership without unlawful interference. He further contends that the respondents failed to comply with the legal procedures governing compulsory acquisition or deprivation of private property and instead resorted to unilateral actions devoid of any lawful authority. 1. The petitioner further avers that the respondents acted without notifying, consulting, or seeking his consent despite being fully aware of his identity and interest in the property. He maintains that he never consented to the respondents’ entry upon or destruction of developments on the land, and that the respondents acted without any colour of right or lawful title capable of justifying their conduct. According to the petitioner, the respondents’ conduct was arbitrary, irrational, unreasonable, and devoid of legal justification. 2. On the basis of those allegations, the petitioner seeks declarations that the proprietary interest in **Parcel No. R-4417** vests in him and that the respondents’ actions in entering upon, and interfering with the suit property were unconstitutional. He further seeks orders of mandamus compelling issuance of an original title in respect of the suit property, and compelling the respondents to compensate him for the alleged loss suffered at market value together with costs and any other appropriate reliefs. 1. The 2nd and 3rd respondents opposed the amended petition through their Grounds of Opposition dated 20th November 2023, stating as follows: 2. That the petition does not fulfil the requirements set under **Article 165(3)(d) of the Constitution of Kenya** in that the amended petition does not state the alleged constitutional provisions violated by the acts or omissions of the 2nd and 3rd respondents with reasonable precision. 1. That the amended petition is hinged on a letter of allotment which is not conclusive evidence of proprietorship of the subject land as contemplated under **Section 26(1) of the Land Registration Act No. 3 of 2012.** 2. That the petitioner has failed to demonstrate that he has met the conditions stipulated in the letter of offer to be considered the bona fide owner and proprietor of the subject land. 3. That the petitioner does not have locus standi to institute the instant petition over the subject land in that the letter of allotment is an intention by the Government to allocate land and not a title document conferring ownership on the petitioner. 4. That the petitioner has failed to demonstrate proprietary interest in the subject land vis-à-vis the constitutional rights allegedly infringed by the respondents. 5. That the petition is misconceived and an abuse of the court process. 6. They subsequently, filed a replying affidavit sworn by John Ngugi Kamami, the County Director for Housing, Wajir County, in the State Department for Housing and Urban Development, sworn on the 24th September 2024, inter alia deposing that the parcel of land claimed by the petitioner is a government house situated on government land in **Skanska Estate, Zone 7**, intended for staff housing for the Government of Kenya; that the house is surrounded by other Government of Kenya staff houses as per the PDP annexed and marked **“JNK”.** 7. He further deponed that there have been attempts to grab and hive off the house and, as a result, the government fenced the plot, including the hived-off area measuring approximately **115 x 110 metres,** to secure the subject land; that **Zones 4, 5, and 7** have always been public land since the colonial period and that the subject land in this petition, namely **MG 17 in Skanska Estate Zone 7**, is designated as government land for staff housing as per the approved development plan/map of 1983. 8. The deponent further stated that the subject land has a building constructed around 1972, which, in his view, clearly demonstrates that the land is public land. He further deponed that he had information and belief that the petitioner served as a County Executive Committee Member in charge of Environment and Natural Resources in the Wajir County Government between the years 2013 and 2018, and that the suit property was illegally and irregularly allocated to him by the defunct County Council of Wajir. 1. It was further averred that the petitioner, being a former County Executive Committee Member of the Wajir County Government, could easily have had access to the allocation documents upon which he relies. The deponent consequently maintained that the amended petition is unmeritorious, misconceived, and an abuse of the court process and therefore liable to dismissal. 2. The 1st respondent opposed the petition through the replying affidavit of Edward Ngari Mucheri, County Physical Planner, Wajir County Government, sworn on 2nd September 2024, deposing inter alia that according to the approved development plan and approved Part Development Plan of the County Government of Wajir, the parcel of land in question is public land declared to fall under the category of **Section 07** of public purpose utilization and reserved for purposes of staff housing for the County Government of Wajir. It was further averred that **MG17**, which is the subject parcel herein, lies within the wider area designated as **Section 07**. 1. That the issuance of an allotment letter to the petitioner would have necessitated the conversion of the land from public to private land, a process that at the material time, would have required the approval and involvement of the Director of Physical Planning and the Commissioner of Lands. According to the 1st respondent, no evidence had been provided by the petitioner to demonstrate that such a process was ever undertaken. 1. That for public land to be allocated, there must be a transparent, accountable, and competitive process, which the petitioner had neither pleaded nor demonstrated. The 1st respondent further contended that the allotment allegedly issued to the petitioner is prima facie not authentic, as there are no records to support the same. The 1st respondent also accused the petitioner, a former County Executive Committee Member, of resorting to forceful and/or illegal means to obtain the allotment letter in violation of due process, and thereafter attempting to use the court process to legalize the alleged irregularities. Consequently, the 1st respondent urged the court to direct the petitioner to restore the suit land to its original condition at his own cost. 1. The Ethics and Anti-Corruption Commission, 5th respondent, filed a response dated 23rd January 2025 to the Further Amended Petition, denying violating any constitutional provisions or infringing upon the petitioner’s rights as alleged or at all. It contended that the petitioner had selectively relied on **Article 40 of the Constitution,** while ignoring **Article 40(6),** which excludes from constitutional protection property found to have been unlawfully acquired. 2. The 5th respondent averred that investigations conducted by the Commission established that the suit property falls within a larger parcel of land owned by the Government of Kenya through the Ministry of Lands, Physical Planning and Housing, and currently managed under the Ministry of Housing at the County Government of Wajir for the benefit of public officers. It further averred that the suit property claimed by the petitioner is situated on land set aside for public use to house government officers who pay monthly rent and that the property has never been surrendered by the Government of Kenya for allocation and/or assignment to private persons, including the petitioner. 1. The 5th respondent further contended that the petitioner had not approached the court with clean hands, and described him as a grabber of public property. It maintained that if the petitioner held any title or ownership documents over the suit property, they must have been irregularly and illegally acquired. The 5th respondent denied that there had been any breach of the petitioner’s rights or deprivation of any proprietary interest and instead maintained that the petitioner was unlawfully and mischievously laying claim to public land. 1. It further stated that if any survey, allocation, and/or assignment of the suit property ever took place, which was denied, then the same was unprocedural, irregular, illegal, and undertaken in blatant violation of the interests of the Government of Kenya. According to the 5th respondent, there was no evidence showing that any such process was sanctioned by the Government of Kenya. 2. The 5th respondent further averred that all the respondents had acted within their lawful mandates in protecting public property and urged the court to sanction and reprimand the petitioner for attempting to acquire public land irregularly and illegally. 3. Consequently, the 5th respondent sought orders dismissing and/or striking out the petition with costs; declarations that the suit property belongs to the Government of Kenya through the Ministry of Lands, Physical Planning, Urban Development and Housing, State Department for Housing; declarations that any ownership documents held by the petitioner are illegal, null and void; orders compelling the 2nd respondent to cancel any certificate of lease held by the petitioner and rectify the register accordingly; and a permanent injunction restraining the petitioner, his assigns, servants and/or beneficiaries from interfering with the Government’s use and occupation of the suit property by trespassing, selling, encumbering or otherwise dealing with the same. 4. The court issued directions on filing and exchanging written submissions on the petition on the 28th May 2025 and 30th July 2025. The learned counsel for the petitioner, 1st respondent, 5th respondent filed written submissions dated 20th June 2025, 21st November 2025 and 16th October 2025 respectively, that the court has considered. 5. The counsel for the petitioner identified one issue in their submissions of whether the petitioner has proved that he was the lawful and registered proprietor of the suit property and thus entitled to the requisite protection. Counsel cited **Articles 40, 65 and 27 of the Constitution** and various provisions of the statutes and submitted inter alia that it is trite that once a person is registered as a proprietor of land, he is to enjoy all rights and privileges appurtenant thereto. 6. That the petitioner has approached the court being the lawful and legitimate proprietor of the suit property, and is entitled to partake of, and benefit from the statutory rights and privileges attaching to ownership of land. The learned counsel referred to the case of ***Pius Kibet Tott versus Uasin Gishu County Government & 9 Others* [2018] eKLR**, and submitted that the petitioner had been duly issued with a certificate of title underpinning ownership of the suit property, and it had not been impeached or cancelled. That the respondents had committed acts of trespass upon the petitioner’s land and the prayers sought in the amended petition should be granted. 1. In their submissions, the counsel for the 1st respondent identified the following issues for determination: 1. *Whether the petitioner has demonstrated through credible evidence that he is the lawful and duly registered owner of Parcel No. R-4417;* 2. *Whether the petitioner’s claim complies with the constitutional and statutory framework governing public land;* 3. *Whether the alleged allocation and/or transfer of the suit property to the petitioner was undertaken in accordance with the law.* 2. On the first issue, counsel submitted that the petitioner had failed to establish any lawful proprietary interest over parcel **No. R-4417**. Counsel argued that the evidence tendered by the respondents, including the approved development plan, land allocation records, and affidavits by the relevant land administration officers, demonstrated that the suit property forms part of public land reserved for staff housing. 3. Counsel submitted that public land cannot be alienated to private individuals except through strict compliance with the constitutional and statutory procedures governing conversion and allocation of public land. According to counsel, such a process would necessarily entail a formal application process, approval by the Director of Physical Planning and the Commissioner of Lands, compliance with planning and environmental regulations, gazettement where necessary, and eventual registration in accordance with the land laws. 4. It was submitted that the petitioner had not produced any registered title capable of conferring ownership over the suit property. Counsel argued that the documents relied upon by the petitioner had neither been approved nor registered by the competent authorities and had not been gazetted. In counsel’s view, the documents therefore lacked legal validity and could not constitute proof of lawful ownership. 5. Counsel further submitted that the affidavit evidence filed on behalf of the respondents confirmed that **Parcel No. R-4417** remains public land and has never been lawfully converted into private property or registered in the petitioner’s name. Reliance was placed on the provisions of the **Land Registration Act** to argue that proprietary rights can only arise upon lawful registration, which had not been demonstrated in the present case. 6. On the second issue, counsel submitted that the petitioner could not seek constitutional protection under **Article 40 of the Constitution** without first establishing lawful ownership of the suit property. Counsel argued that the petitioner had failed to demonstrate valid registration, lawful allocation, or compliance with the legal framework governing public land. 7. Counsel further submitted that the alleged transfer to the petitioner was not approved by the relevant authorities, was not gazetted, and was never registered in the land registry. It was therefore submitted that the petitioner was not entitled to the protections available to a lawful registered proprietor under the Constitution or statute. 8. On the third issue, counsel submitted that the evidence before the court established that the suit property had been reserved for a specific public purpose, namely, staff housing, and there was no evidence that the land was ever lawfully converted from public land to private land. 9. Counsel argued that any purported allocation or transfer undertaken outside the prescribed legal framework would be illegal, null, and void, and incapable of conferring proprietary rights upon the petitioner. In conclusion, counsel submitted that the petitioner had failed to prove lawful ownership of **Parcel No. R-4417** and that the alleged allocation and/or transfer of the property was irregular, unlawful, and contrary to the constitutional and statutory provisions governing public land. Counsel consequently urged the court to dismiss the petition with costs. 1. The learned counsel for the 5th respondent submitted inter alia that the petitioner was improperly seeking constitutional protection over public land that had allegedly been unlawfully acquired. Counsel submitted that the suit property forms part of public land reserved for government staff housing within **Skanska Estate, Zone 7**, and that the land has historically been utilized for public purposes. The Counsel pointed out that the property contains government housing constructed around 1972 and argued that the same demonstrates the longstanding public character of the land. 2. It was submitted that investigations conducted by the 5th respondent established that the suit property belongs to the Government of Kenya through the Ministry of Lands, Physical Planning, Urban Development and Housing and is currently managed under the Ministry of Housing at the County Government of Wajir. Counsel argued that the property had never been surrendered, degazetted, or lawfully converted from public land into private land capable of allocation to the petitioner. 3. Counsel further submitted that the petitioner had failed to produce any lawful title document proving ownership of the suit property. It was argued that the allotment documents relied upon by the petitioner neither conferred ownership nor demonstrated compliance with the mandatory legal procedures governing allocation of public land. 4. The 5th respondent further contended that any purported allocation or assignment of the suit property to the petitioner was irregular, unlawful and *void ab initio* for failure to comply with the constitutional and statutory framework governing alienation of public land. Counsel submitted that there was no evidence of surrender of the land by the Government of Kenya, approval by the relevant planning and lands authorities, lawful conversion of the land from public to private use, or registration capable of conferring proprietary rights upon the petitioner. 1. Counsel also submitted that the petitioner could not seek refuge under **Article 40 of the Constitution** while ignoring **Article 40(6***),* which expressly excludes from constitutional protection property found to have been unlawfully acquired. It was argued that constitutional protection of property rights does not extend to illegally or irregularly acquired public land. 2. Further, counsel submitted that the petitioner, having previously served as a County Executive Committee Member within the Wajir County Government, was in a position to improperly access allocation documents and influence processes relating to public land. Counsel therefore urged the court to closely scrutinize the circumstances under which the allotment documents relied upon by the petitioner were allegedly procured. 3. Counsel maintained that the respondents were merely discharging their constitutional and statutory mandate of protecting public land from unlawful acquisition and encroachment and that no constitutional rights of the petitioner had been violated. 4. In conclusion, counsel urged the court to find that the petitioner had failed to establish any lawful proprietary interest over the suit property and that the petition was an attempt to sanitize the unlawful acquisition of public land through constitutional litigation. The court was consequently urged to dismiss the petition with costs and grant the reliefs sought by the 5th respondent, including declarations that the suit property belongs to the Government of Kenya and that any ownership documents held by the petitioner are illegal, null, and void. 1. At the time of preparing this judgment, the 2nd, 3rd, and 4th Respondents had not filed any written submissions. 2. The issues arising in this petition for the court’s determination are as follows: 1. *Whether the petitioner has established a lawful proprietary interest over* ***Parcel No. R-4417*** *in light of the respondents’ contention that the suit property forms part of public land reserved for government staff housing.* 2. *Whether the suit property forms part of public land reserved for government staff housing.* 3. *Whether the petitioner proved a violation of his constitutional rights under* ***Article 40 of the Constitution****.* 4. *Whether the petitioner is entitled to the reliefs sought in the petition.* 3. The court has carefully considered the grounds on the petition, the grounds of opposition, the affidavit evidence, submissions by the learned counsel, superior court decisions cited thereon, and come to the following determinations: 1. ***Whether the petitioner established a lawful proprietary interest over parcel No. R-4417, in light of the respondents’ contention that the suit property forms part of public land reserved for government staff housing;*** The petitioner’s case is premised on the assertion that he is the lawful allottee and proprietor of **Parcel No. R-4417**. In support thereof, he produced an allocation letter issued by the defunct County Council of Wajir, receipts for transfer fees, demarcation charges, and land rent payments issued by the said local authority and later by the County Government of Wajir. * 1. The allocation document indicates that the suit property was allotted pursuant to a Town Planning, Markets and Works Committee meeting held in the year 2003. The receipts produced by the petitioner further demonstrate that payments relating to the suit property were received by the allocating authority. There is no evidence placed before the court suggesting that the allotment document and receipts relied upon by the petitioner were forged or fabricated. The court therefore accepts that the petitioner indeed had official dealings with the County Council of Wajir in relation to **Parcel No. R-4417.** 2. The respondents’ case is that the land claimed by the petitioner corresponds with **MG17** situated within **Skanska Estate Zone 7**, an area reserved for government staff housing. In support thereof, the respondents produced an approved development plan dated 22nd April 1983, together with a legend identifying **Zone 7** as staff housing. They further produced a government housing register identifying **MG17** as a Grade 6 government house under the Ministry of Agriculture, inventory records showing governmental occupation and management of the premises, and photographs depicting an existing government residential house enclosed within a fenced compound. * 1. The constitutional and statutory framework governing public land is clear. **Article 62 of the Constitution** classifies as public land all land lawfully held, used, or occupied by a State organ unless such land is lawfully acquired. Further, **Article 62(2)** vests public land in the county governments and the national government to be held in trust for the people resident in the county or for the people of Kenya, respectively. * 1. Under the repealed **Government Lands Act**, which was the applicable statute at the time of the alleged allocation, alienation of unalienated government land could only lawfully occur through the Commissioner of Lands acting in accordance with the law. Similarly, under the **Physical Planning Act** then in force, any allocation or change of user affecting planned public land required planning approval and compliance with approved development plans. * 1. The significance of those provisions is that not all land could lawfully be allocated merely because a local authority issued an allotment letter. Land already reserved for a public purpose ceased being available for alienation unless lawfully surrendered, degazetted, replanned, or otherwise converted in accordance with the law. 2. In the present case, the petitioner did not place before the court any evidence demonstrating: 1. that the suit land had ceased being public land; 2. that the land had been lawfully excised from the government housing scheme; 3. that the Commissioner of Lands approved the alleged alienation; 4. that a Part Development Plan existed in support of the allocation; 5. that the land was surveyed and registered as a private parcel; 6. or that the allotment crystallized into a registrable proprietary interest*.* Indeed, no title deed, lease instrument, deed plan, survey records, or registry records were produced by the petitioner. * 1. The court is therefore confronted with two competing positions: on one hand, the petitioner possesses facially authentic allotment and payment documents issued by the local authority; on the other hand, the respondents produced evidence indicating longstanding public reservation and governmental occupation of the land as part of a staff housing scheme existing since at least 1983. * 1. In the court’s view, where evidence demonstrates that land had already been reserved and utilized for a public purpose, the burden shifts to the person asserting private ownership to demonstrate that the land was lawfully available for alienation and that the allocation complied with the governing legal framework. The petitioner did not discharge that burden. 2. The court is therefore unable to find that the allotment documents relied upon by the petitioner, absent proof of lawful alienation and registration, conferred a legally enforceable proprietary interest over the suit property. Accordingly, the court finds that the petitioner failed to establish lawful ownership or a protectable proprietary interest over **Parcel No. R-4417.** 3. ***Whether the petitioner proved a violation of his constitutional rights under Article 40 of the Constitution;*** The petitioner’s claim is principally founded upon the alleged violation of his right to property under **Article 40 of the Constitution.** However, having found that the petitioner failed to establish a lawful proprietary interest over **Parcel No. R-4417**, and further having found that the evidence placed before the court points to the suit property forming part of public land reserved for government staff housing, it follows that the petitioner cannot successfully invoke the protections afforded under **Article 40 of the Constitution.** * 1. Further, **Article 40(6) of the Constitution** expressly excludes from constitutional protection property found to have been unlawfully acquired. In the circumstances of this case, the petitioner failed to demonstrate that the suit property was lawfully available for alienation or that the alleged allocation complied with the constitutional and statutory framework governing public land. Consequently, the court is not persuaded that the petitioner has proved the alleged violation of his constitutional rights. * 1. ***Whether the petitioner is entitled to the reliefs sought****:* Having found that the petitioner has failed to establish a lawful proprietary interest over the suit property, and further failed to prove violation of any constitutional rights, the declaratory orders sought cannot issue. Similarly, the prayer for mandamus compelling issuance of title cannot issue in the absence of proof that the petitioner lawfully acquired a registrable interest over the suit property. The prayer for compensation also fails, as the petitioner did not establish a lawful deprivation of a protected proprietary interest. * 1. As regards the counter-reliefs sought by the respondents, the court notes that no registered title exists in favour of the petitioner capable of cancellation. Further, while the evidence strongly points to the suit property being public land, the court is not persuaded that the evidentiary threshold necessary for definitive findings of fraud or illegality against the petitioner personally was fully established. Accordingly, the court declines to grant the respondents any orders sought beyond dismissal of the petition. * 1. This petition was in pursuit of private property benefits as opposed to public reliefs. That though the petitioner has failed in his endeavours, and the respondents who have emerged victorious are all public entities, I am of the view that it is fair and just for each party to bears their own costs. 1. In view of the foregoing conclusions in this petition, the court finds and orders as follows: 1. **That the petition lacks merit and is hereby dismissed.** * 1. **That given the nature of the dispute, and the fact that the petitioner had relied on documents on the face of it issued by public authorities, each party shall bear its own costs.** Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 21ST DAY OF MAY 2026.** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Petitioner – Mr. Bosire Respondents – Mr. Odeny for 1st Respondent Mohamed - Court Assistant **S. M. Kibunja** **ELC JUDGE**