[2025] KEELC 3134 (KLR)

Beja & another v Cabinet Secretary Ministry of Lands & 9 others (Environment & Land Petition 13 of 2022) [2025] KEELC 3134 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEELC 3134 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Petition 13 of 2022

FM Njoroge, J

April 3, 2025

Between

Rumba Matano Beja & another

Petitioner

and

Cabinet Secretary Ministry of Lands & 9 others & 9 others

Respondent

Judgment

The Petition 1. The petition subject of this judgment is dated 20th April 2022 and it is seeking the following orders:a.A declaration that the 2nd and 3rd respondents’ failure to comply with a mandatory requirement of Section 25 of the Land Adjudication Act constitutes a violation of the petitioners’ right to property;b.A declaration that the 2nd and 3rd respondents’ failure to comply with a mandatory requirement of sections 25, 27, and 28 of the Land Adjudication Act constitutes of violation of the petitioners’ right to property;c.A permanent injunction against the 2nd - 7th respondents from purporting to restart a fresh the process of adjudication which was concluded 34 years ago;d.A permanent injunction against the 2nd - 7th respondents from purporting to appointing committee whatever pursuant to Section 6 of the Land Adjudication Act;e.A declaration that any committee appointed after the preparation of the Adjudication Register and or after the petitioners received their confirmation letter is illegal null and void devoid of any legal foundation;f.An order compelling the 1st - 4th respondents through the 4th respondent to comply with mandatory provision of Section 27(3)(c) of the Land Adjudication Act;g.Subsequently an order compelling 1st -4th respondents through the 4th respondent to comply with Section 28 of the Land Adjudication Act within a reasonable time frame fixed by this honorable court;h.Costs of this petition;i.Any other remedy or such other orders as this honorable court made him just and expedient in the circumstances to remedy the violations of the petitioners’ fundamental Constitutional rights.

2. The petitioners describe themselves as residence of Kidutani and more specifically on plot number 10 in Kidutani Mtwapa GL15A also known as “GL Nyika Reserve.” The 1st to 9th respondents are various government offices established by the Constitution and various statutes and are in charge of National Government Offices. The 1st respondent is the Cabinet Secretary in charge of matters land. The interested party is County Government established under Article 176 of the Constitution and is the relevant county in which the suit land is situate. The 2nd Interested Party manages land on behalf of the National Government.

3. This is the background to the petition according to the petitioners: via Legal Notice Number LN155/1970 the government of Kenya declared the part of trust land situate within the Northern and Southern Divisions of the Kilifi Administration District an adjudication area through the Land Adjudication (Application) (Kilifi District) Order 1970. Plot number 10 Kidutani Mtwapa GL15A also known as GL Nyika Reserve being then in Kilifi South District (now Kilifi South Sub-county) fell within the area declared an Adjudication Section. Towards the end of 1988 the officers of the 2nd and 3rd respondents carried out a comprehensive exercise of adjudication as contemplated by Sections 5-27 of the Land Adjudication Act. During that exercise the 1st and 2nd petitioners were identified as the rightful owners of plot number 48 and 10 respectively, among other beneficiaries. Kilifi County Council was identified as a beneficiary of the public utility plots in the area, that is, a primary school plot number 174 a cattle dip, plot number 10 and a public market, plot number 177.

4. Upon completion of the adjudication exercise and the confirmation of the beneficiaries the 2nd and 3rd respondents’ officers issued the beneficiaries with temporary certificates confirming their parcel numbers. The petitioners state that the issuance of certificates created a legitimate expectation in the petitioners that the process of land adjudication would be followed and completed as provided for by the Land Adjudication Act.

5. Later the officers of the 2nd and 3rd respondents confirmed the status of each parcel and its owner as per the records or their Adjudication Register. This further enhanced the legitimate expectation.

6. However, the 2nd and 3rd respondents failed to comply with the mandatory requirements of Section 25 of the Land Adjudication Act, which is a breach of the petitioners right to own property as contemplated by Articles 40(1) (a) and (b) of the Constitution and Article 27 of the Constitution. It is also stated that the 2nd and 3rd respondents’ failure to comply with Sections 25, 27 and 28 of the Land Adjudication Act is a direct breach of the petitioners’ rights to fair administrative action as contemplated by Article 47 of the Constitution.

7. The petitioners aver that failure on the part of the 2nd and 3rd respondents to comply with Section 27 (3)(c) of the Land Adjudication Act precipitated the failure of the 4th respondent to comply with Section 28 of the Land Adjudication Act further violating the petitioners right to property and Articles 40(1)(a) and (b) of the Constitution.

8. The petitioners aver that there that there is evidence that there have been attempts to sell off portions of land earlier adjudicated in their favour, which has resorted in violent criminal acts which have been reported to the police.

9. It is also alleged that the Deputy County Commissioner Kilifi and the Deputy County Commissioner Rabai have been tussling over the extent of their jurisdiction which marks the areas over which they would be having mandate to appoint a committee under the provisions of Section 6(1) of the Land Adjudication Act. That conflict between the two offices is said to be prejudicial to the rights of the petitioners. The petitioners further aver that the conflict between the two offices is of no importance, the adjudication process having been concluded way back in 1988. It is stated that at least two meetings have been called involving the 6th and 7th respondents, one of which was held on 6th of April 2022 and which sought the fresh commencement of the appointment of a committee as contemplated by Section 6 of the Land Adjudication Act.

10. The petitioners have pleaded that they are aware of Malindi Petition Number 19 Of 2021 which seeks to quash the appointment of the committee members.

11. The petition is supported by the affidavits of Rumba Matano Beja and Nazi Chilango Mrima, the petitioners.

Responses Response of The Respondents 12. The 2nd and 3rd respondents filed the sworn affidavit of Francis Obiria Oseko dated 8th of June 2022 in opposition to the petition. In that affidavit it is deponed that the Kidutani Nyika measuring approximately 500. 2 hectares is situated at the border of Kilifi South and Rabai Sub-counties; that GL 15A measuring 35. 08 hectares is a separate parcel within the same area. Both parcels are government land. The National Land Commission who is the custodian of public land has reserved the two parcels for settlement purposes by the letters dated 16th April 2021. Consequently, the land adjudication process is not applicable to the two parcels since the suit land is not ancestral or community land and thus by extension not Trust Land. The Department of Land Adjudication and Settlement had started the demarcation and survey of the two parcels but the exercise was abandoned when it was discovered that the land is government land, and that the necessary reservation had not been done. Now that the reservation has been done by the National Land Commission the Department has to move in and finalize the regularization of squatters living on the land and other persons using the land. Several public meetings were held at which the beneficiaries and the local inhabitants were informed that the parcels were government land and that a resettlement program is to be undertaken to settle them. The meetings were held on diverse dates being 24th November 2020 and 18th May 2022. However, the exercise did not commence as an injunction restraining the office from undertaking in activity on the suit land was issued in Malindi ELC Number 26 2021. That case was however withdrawn by the plaintiffs on 15th February 2022. In April 2022, survey and demarcation commenced and the exercise is almost complete. The purpose of the exercise is to settle the people living on the land and others who are cultivating on the land even though they live elsewhere. Upon completion of survey and demarcation, stated the deponent, a map will be generated to be used for allocation and issue of title deeds to the beneficiaries.

13. The deponent outlined the difference between resettlement and adjudication, saying that in resettlement land is acquired by purchase by government from private individuals, by reservation by the National Land Commission, or surrender by private individuals or institutions, to the government. Where land has been acquired, it is planned, surveyed, demarcated and a map generated for allocation and the beneficiaries are identified by a set criterion either, or by virtue of their being resident on the land or cultivating on the same; further, public utility parcels are reserved.

14. On the other hand, the land adjudication process entails ascertainment and recording of rights and interests in land as they already exist. It begins with a description of and declaration of the section as required by Section 5 of the Land Adjudication Act where a notice of establishment is issued and widely circulated. Each Adjudication Section must have an Adjudication Committee appointed under Section 6 of the Land Adjudication Act. Demarcation and survey are undertaken. Then interests in land are recorded. Adjudication records are prepared. The Adjudication Register is published for inspection as per Section 25 and 26 of the Land Adjudication Act. Disputes arising during adjudication are adjudicated through a four-tier hierarchical mechanism starting from a Land Committee, Appeal to The Arbitration Board, Objection to the Adjudication Register, and Appeal to The Minister. Upon completion of the adjudication process the Director of Land Adjudication and Settlement issues a letter of finality, which, together with the adjudication register comprising of the map and adjudication records, are forwarded to the Chief Land Registrar for processing of title deeds as per Section 27 and 28 of the Act. The deponent concludes by stating that the two parcels mentioned herein above have never been Adjudication Sections and therefore the Land Adjudication Act does not apply to them, and the respondents cannot be accused of failing to comply with Sections 25, 27 and 28 of the Land Adjudication Act since the land is not ancestral land and that only a resettlement of the squatters thereon can be done.

15. This court has not seen any response on behalf of the interested parties.

Petitioners’ Supplementary Affidavit Dated 14th June 2022. 16. In this additional affidavit it was deponed as follows in response to the replying affidavit of Francis Obiria dated 8th June 2022: that it is conceded at paragraph 3 of the affidavit of Francis Obiria that the two parcels of land have official maps; that all Government Land records were kept under Section 97 of the repealed Government Lands Act which was saved by Section 104(1) and Section 105(1) of the Land Registration Act 2012; that the affidavit confirms that the offices of the 2nd and 3rd respondents commenced adjudication and survey, but the same was abandoned later on; that it is a shock to the petitioners that the process was abandoned midway as admitted by the third respondent; that failure to give notice of abandonment of the process to the petitioners is a breach of their rights to property; that in any event upon reservation by the National Land Commission the process of settlement as averred by the third respondent, is supposed to follow the provisions of Section 134 of the Land Act which is not now the case; that in the processes under Section 134 of the Land Act, the 3rd respondent is not involved at all; that in view of the mandatory provisions of Sections 134 of the Land Act and by the averment as at paragraph 7 of the 3rd respondent, the 3rd respondent is engaged in an illegality; that Section 134 (6) of the Land Act contemplates that settlement shall be done upon planning which is by the County Government and not by the respondents; that planning is the very first step in such settlement; that until such planning is done all other actions undertaken by the respondents are illegal, null and void.

Petitioners’ Further Affidavit Dated First December 2023 17. In that affidavit the petitioners aver that they had received certified copies of Parliament’s Proceedings of the afternoon of 13th December 2001 and they have annexed them to that affidavit in support of the petition.

Submissions 18. The petitioners filed submissions dated 10th of December 2024 and the respondents filed theirs dated 19th November 2024. This court has taken consideration of those submissions in preparation of this judgment.

Analysis and Determination. 19. This court has already found inter alia in Petition No 19 Of 2021 which is being heard alongside the present petition, that the land parcels GL15A measuring 35. 08 hectares and the Kidutani Nyika (also referred to as the Nyika Reserve) measuring approximately 500. 2 hectares are, according to evidence adduced, government land. This court has also stated that when considered wholistically for their effect, the contents of Francis Obiria Oseko’s affidavit further reinforce this court’s finding herein above that perchance the petitioners are in occupation of land within either GL15A and the Nyika Reserve, they are rightfully in such occupation.

20. This court also stated as follows in that judgment that if the land was allocated in the 1980s to persons who are now already settled on it, any dispossession of the petitioners and subsequent fresh allocation to other persons lacks logic because legitimate expectation had been created in the petitioners that they would be issued with titles in respect of the land they were allocated; it would also violate their rights under Article 27(4).

21. Having found that the land is within the category of Government Land, it is doubtful that the adjudication process provided for under the Land Adjudication Act was, from inception, the proper process applicable for the purposes of settlement. That notwithstanding, the description of what occurred in the 1980s appears to identify with a squatter occupation verification exercise, meant to identify whoever was squatting on government land for the purposes of the regularization of their settlement thereon. Evidence in the two petitions herein has proved that the exercise established that there were 174 families on the suit land, and the portions of land they occupied and the portions were demarcated, surveyed and issued with numbers for the purposes of subsequent issuance of title documents to the occupants.

22. The petitioners in the present petition have taken issue with the failure on the part of the Director of Land Adjudication and Settlement and the officers under him, and the Chief Land Registrar, to perfect the adjudication exercise, which has resulted in the Deputy County Commissioners of Kilifi and Rabai trying to restart the exercise.

23. They in particular take issue with the appointment of a 9-member committee on 23/11/2020 at the instance of the Assistant County Commissioner Rabai which was meant to restart the adjudication process. Later on 6/4/2022 the Deputy County Commissioners of Kilifi and Rabai convened a public baraza that was meant to commence a fresh process of appointment of a committee under Section 6 of the Land Adjudication Act.

24. The petitioners lament that the said attempts to restart afresh the adjudication exercise are null and void, adjudication having been conducted in the 1980s. They aver that by virtue of the said adjudication they were issued with temporary certificates confirming their parcel numbers, and thus legitimate expectation was created in them that the process would be completed as per the Land Adjudication Act.

25. The petitioners claim that by virtue of default on the part of the Director of Land Adjudication and his officers in executing mandatory requirements of Section 25, 27, and 28 of the Land Adjudication Act, their rights to equality and freedom from discrimination, and equal protection and equal benefit of the law under Article 27 and fair administrative action under Article 47 and their rights to property under Article 40(1) (a) have been violated.

26. In the present petition, after an analysis of the pleadings and evidence I find that the petitioners have demonstrated that the 2nd and 3rd respondents commenced in the 1980s a land allocation process which they never carried through to final conclusion of issuance of title. In this court’s view, the government having begun that process, ought to have either formally concluded it within reasonable time or called it off with reasons given. None of that happened and the process has simply lain in limbo until new officers not involved in it in the 1980s commenced attempts to restart it.

27. Such a fresh start while the Minister for Lands committed to Parliament in the year 13/12/2001 that the petitioners and others settled on the suit land would be issued with titles, if undertaken without consideration of the petitioner’s earlier allocations, is likely to be unfair and manifestly prejudicial to the petitioners.

28. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) the court stated as follows:“(263)Legitimate expectation” is a doctrine well recognized within the realm of administrative law, as is clear from the English case, In re Westminster City Council, [1986] A.C. 668 at 692(Lord Bridge):…the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation”.(264)In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise.(265)An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.(266)Wade and Forsyth in their work, Administrative Law, 10th Ed (pages 446-448), discuss the relevant legal principles on legitimacy of an expectation. For an expectation to be legitimate, it must be founded upon a promise or practice by the public authority, that is said to be bound to fulfil the expectation...”

29. Section 104(1) of the Land Registration Act provides as follows:“104. Saving registers under repealed laws1. A register maintained under any of the repealed Acts shall, on the commencement of this Act, be deemed to be the land register for the corresponding registration unit established under this Act.”

30. Taking the law herein above cited into consideration, it is correct as the petitioners argue, and it would thus be expected, that even after the repeal of the Government Lands Act, records for land formerly administered under that Act would be retained for future use. Consequently, these saving provisions, taken in conjunction with the earlier assurance that the Minister for Lands gave publicly in Parliament, cement the legitimate expectation that was created and maintained in the settlers on the suit land herein that regardless of whatever law the process had commenced under, it would be finalized and titles would be issued to them.

31. Article 47 (1) and (2) provides as follows:“47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

32. In the light of the effect of the preservation of records under Section 104(1) of the Land Registration Act, restarting the process from a scratch 20 years after the Minister reassured the public on the issuance of title to them and long after the plots had been surveyed and allocated numbers is bound to delay the processing of the petitioners’ title documents. Thus, this court holds that the petitioner’s rights to expeditious efficient, lawful and administratively fair under 47(1) of the Constitution of Kenya 2010 have been violated and are threatened with continued violation.

33. Also, bearing in mind that the petitioners have already developed the land they were allocated in the 1980s, that development puts risk those developments in the event a fresh adjudication or allocation exercise fails to settle them on their respective developed plots, and thus their rights to acquire and own property under Article 40(1) (a) are under threat of violation.

34. However, though this court has found that various rights of the petitioners in this petition have been violated there are more details that have emerged concerning the suit land and the processes that went on in the 1980s and those recent ones that have sparked off this litigation. First even though the petitioners herein thought that GL 15A and the Nyika Reserve were one and the same parcel of land, Francis Obiria, the Land Adjudication and Settlement Officer Kilifi has in his affidavit clarified that they are two separate plots. It is also alleged that there are turf wars between the National Government administrators from Kilifi South and Rabai who each think that the land is within their jurisdiction, which, if it is true and if they are not resolved urgently, is likely to further hinder issuance of title to the petitioners.

35. Two letters dated 16th April 2021 reveal that the National Land Commission has already written to the Cabinet Secretary for Lands reserving the 2 parcels of land for purposes of settling squatters already living on them.

36. It has also emerged that beside the public baraza held at Bistara Village Kinung’una Sub-location on the 24 November 2020 during which a Committee was appointed, another meeting chaired by the County Commissioner Kilifi occurred on 18th May 2021 at the same venue.

37. The minutes of the second meeting revealed as follows:a.A settlement programme had been conducted on both plots in the 1980 but it had stalled for a very long time until the year 2020 when the government revived the settlement program;b.The meeting recognized that the appointment of a committee on 24th November 2020 failed to include other residents of Kilifi South and ensured that members were from only one ethnic group; that the appointed committee should be expanded from 9 members to 16 members in order to adhere to the principle of inclusion; there are some people on the committee who are accused of having sold parts of the suit land to third parties;c.There were persons who benefited during the aborted adjudication process by grabbing huge chunks of land which they feared they would lose if a new resettlement program was affected;d.There were land skirmishes on 9th May 2021;e.Grassroots government officers have taken partisan positions on the matter on both sides;f.There is still a perception by the one community that the reserve is community land reserved for them and is not available not for settlement of just any squatter;g.Those involved in the sale of portions of the suit land should be investigated for prosecution;h.The County Government pledged to fully support the process and fund its activities;i.That the settlement exercise will fully embrace the principle of equity fairness and justice in the identification and enlisting of beneficiaries to ensure all the genuine beneficiaries are considered;j.The beneficiaries would comprise of the people already residing cultivating on the land and any other deserving landless casesk.The initial process with entail setting out of the external boundary of the scheme picking of plots and numbering, reserving public utilities and enlisting beneficiaries.

38. The above points are the ones that give this court’s direction as herein below in the determination of this matter and especially with regard to the prayers sought by the petitioners.

39. The court can find that the rights of a citizen have been violated under Article 47 : However where it is clear that the court would be compelling the respondents to proceed with their mandate under the wrong law, it will be reluctant to do so. This court has found the land was from inception not community land but government land and it is on that ground that a declaration cannot issue that the failure of the 2nd and 3rd respondents to comply with the requirements of Section 25 of the Land Adjudication Act cannot issue. Therefore, the reliefs sought in Prayers No. A and B of the petition cannot issue.

40. As for Prayer No. C, the proposed injunction would not be of any use to the petitioners because the process that is being sought to be applied to the suit land is not that prescribed by the Land Adjudication Act but a settlement of squatters on the land they have occupied as well as allocation of portions of land to other deserving Kenyans; for that reason, that prayer cannot issue as the court is not inclined to issue orders in vain.

41. Regarding Prayer No. D, this court has already issued orders in Malindi ELC Petition Number 19 Of 2020 declaring that the 1st -5th respondents in that petition are not competent to hold positions in the committee appointed to handle matters relating to the suit land. Issuance of a permanent injunction in the present petition would mean that no committee will ever be appointed to deal with a land and the conflict will continue to fester on the ground, unaddressed. This is hardly a desirable state of affairs given that there are already squatters on the land who require to be issued with titles and that the land issue is generating excessive acrimony on the ground hence requiring expeditious resolution. The opinion of this court is that the petitioners herein should adopt the path taken by their compatriots in Malindi ELC Petition Number 19 Of 2020 in order to weed out persons whom they do not think are worthy to serve as Committee members.

42. With regard to Prayer No. E, this court has already pronounced itself on Prayers Number A and B above on its reluctance to issue orders appearing to compel the respondents to continue to act under the inappropriate law. In any event, the minutes that I have analyzed herein above, that is, the minutes of the public participation meeting held on 18th May 2021 indicate that one of the resolutions arrived thereat is that the settlement exercise will fully embrace the principle of equity, fairness, and justice in the identification of and enlisting of the beneficiaries in order to ensure that all the genuine beneficiaries are considered and that those beneficiaries will comprise of the people already residing on the land, cultivating on the land, and other deserving landless cases. It is apparent that the interests of the petitioners who claim to be on the ground are already assured of protection by virtue of the resolution made in that meeting. This court having taken action in Malindi ELC Petition Number 19 Of 2020 by disqualifying the members of the committee who had expressed their disapproval to the petitioner's presence on the suit land, it there would be expected that any further appointments to that committee will be guided by this courts directions in Malindi ELC Petition Number 19 Of 2020. It is therefore in the public interest that this court does not absolutely bar the formation of a committee to handle those matters relating to the land provided their appointments and membership of that committee adhere to the law and the Constitution.

43. Prayer Numbers F and G suffer the same fate as Prayers Number A, B and C as they purport to seek to compel the respondent to apply the Land Adjudication Act to the settlement process yet the land is Government Land.

44. In the final analysis, and in a strange twist of events, this court finds that though the petitioners rights under Article 27 and Article 40 have been proved to have been violated or to be under threat of further violation, the bulk of the prayers sought in the petition cannot issue. However, it is crystal clear that the petitioners desire to have titles issued to their land parcels allocated in the 1980s; what petitioners wish to escape from is any prejudice that may be occasioned to them by any potentially unjust or unscrupulous practices during the revived process. As this court has already found that the settlement process of the 1980s and the events that followed it created legitimate expectation in the petitioners that they would own the land allocated to them, this court must therefore craft prayers that will as far as possible and within the law protect their interests. I therefore order that the interests of the petitioners shall be protected in the following manner during the revived settlement process:a.The respondents shall retrieve the records of the adjudication exercise that took place in the 1980s by which the petitioners were settled on the suit land and use them for identifying the plots upon which the petitioners were settled by the Government;b.Unless for a very good reason solely arising from planning considerations to be put down in writing and after direct engagement with the petitioners during the settlement process, established plots on which the petitioners were settled in the 1980s shall not be reduced or moved or their boundaries otherwise affected;c.Any decision under taken by the respondents in regard to the petitioners under limb no. (b) herein above shall be put in writing and delivered to each of the affected petitioners personally within 7 days of the decision;d.The further recruitment of members to the committee handling the settlement process with regard to the suit land is hereby allowed to proceed;e.The further recruitment of members to that committee mentioned in (d) hereinabove shall adhere to the dictates of the law and the Constitution;f.In order to reduce tedium and avert a multiplicity of litigation over the same issues litigated upon in this petition by the two petitioners named, the directives of this court in the foregoing limbs (a)- (e) shall apply to all the 177 plots including the public utilities which were demarcated in the 1980s under the stalled 1980s settlement process;g.The 1st, 2nd, 3rd and 4th respondents shall present a formal report of the manner in which the orders of this court have been implemented within six months of this judgment and there shall be a mention for the purpose on 3rd September 2025;h.Each party shall bear their own costs of this petition.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 3RD DAY OF APRIL 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI.