https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4206

King’angi v Registrar of Lands, Kirinyaga County & 3 others (Environment and Land Petition E002 of 2022) [2026] KEELC 4206 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4206 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Petition E002 of 2022 SM Kibunja, J July 8, 2026 Between Patrick Karuri King’angi Petitioner and The Registrar of Lands, Kirinyaga County 1st Respondent The Land Surveyor, Kirinyaga County 2nd Respondent The Hon Attorney General 3rd Respondent Joseph Mutugi Karani 4th Respondent Judgment The Petitioner's Case: 1.The Petitioner instituted this cause through the Petition dated 16th December 2022, filed together with a supporting affidavit sworn on the same date. He seeks for inter alia permanent injunction, declaratory order, mandamus, damages and costs. The prayers sought are primarily consequential from the subdivision of Land Parcel No. Mwerua/Kagio/3, and the subsequent registration of Land Parcel No. Mwerua/Kagio/1499 in the name of the 4th Respondent.His case is that, at all material times, he was the registered proprietor of Land Parcel No. Mwerua/Kagio/3, having been registered as proprietor on 9th January 1985 after attaining the age of majority. He states that the parcel had previously been registered in the name of his late father, Karuri Kingangi, who was issued with a land certificate on 1st November 1960, and on 8th January 1973, caused a restriction to be entered against the title in favour of the Petitioner until he attained the age of majority. 2.The Petitioner avers that, unknown to him, the 4th Respondent lodged a caution against the suit property on 1st July 1985, claiming a purchaser's interest on the basis that the Petitioner's late father had sold the land to him before his demise. He contends that the 4th Respondent thereafter caused the land to be subdivided on 4th November 1985 into Land Parcels Nos. Mwerua/Kagio/1498 and Mwerua/Kagio/1499, and, on the same date, caused Parcel No. Mwerua/Kagio/1499 to be transferred into his own name. According to the Petitioner, those transactions were undertaken without his authority, knowledge, or participation, notwithstanding that he was the registered proprietor of the original parcel.He states that Parcel No. Mwerua/Kagio/1498 was subsequently registered in his name, and the title thereto was presented to him by the 4th Respondent on the representation that the transaction had been concluded between the 4th Respondent and the Petitioner's late father before the latter's death. 3.The Petitioner further states that, despite the subdivision, the 4th Respondent did not allow him quiet possession of his portion of the land, and continually threatened to dispossess him thereof. He avers that on 23rd September 2014, he entered into an agreement with the 4th Respondent for the sale of one-half acre out of Land Parcel No. Mwerua/Kagio/1498. He states that a boundary dispute subsequently arose between them, prompting him to make inquiries at the Kirinyaga County Lands Office, where he discovered that the original parcel had been subdivided in 1985. He thereafter reported the matter at Kagio Police Station under OB No. 10/30/3/2022. The Petitioner contends that investigations into the transaction established that the mutation forms, transfer documents, and Land Control Board consent relating to the subdivision could not be traced.It is his position that, as the registered proprietor of Land Parcel No. Mwerua/Kagio/3, he ought to have participated in and authorized the subdivision and transfer undertaken on 4th November 1985, and that the absence of those documents demonstrates that the process was irregular. 4.On the basis of the foregoing, the Petitioner alleges that the Respondents violated his constitutional rights under Articles 10, 27, 28, 40, 60, 64, and 68 of the Constitution by failing to safeguard his proprietary interests and by permitting the 4th Respondent to acquire an interest in the land without following the prescribed legal procedure.He further contends that the failure by the 1st, 2nd, and 3rd Respondents to discharge their statutory responsibilities exposed his property to unlawful acquisition by the 4th Respondent and occasioned him loss, mental anguish, and suffering. He therefore seeks, among other reliefs, a permanent injunction restraining the 4th Respondent from dealing with the suit property, a declaration that his constitutional right to property was violated, and an order of mandamus directing the cancellation of the 4th Respondent's title to Land Parcel No. Mwerua/Kagio/1499, general, exemplary and aggravated damages, costs of the Petition and such further relief as the Court may deem fit. The 1st , 2nd and 3rd Respondents' Case__: 5.The 1st, 2nd, and 3rd Respondents opposed the Petition through a Response to the Petition dated 20th February 2023, inter alia denying that the Petitioner's constitutional rights had been violated as alleged. They averred that the green card relating to Land Parcel No. Mwerua/Kagio/3 shows that the parcel was initially registered in the name of Karuri Kingangi on 1st November 1960, and that a land certificate was issued on 8th January 1973.They further stated that the register reflects a correction of the proprietor's name to Patrick Karuri Kingangi, following which a land certificate was issued on 9th January 1985. They also admitted that a restriction was entered against the title as Entry No. 3 in the register. 6.The Respondents denied the Petitioner's allegation that the land was registered in his favour upon his attaining the age of majority and put him to strict proof thereof. They admitted that a caution claiming the purchaser's interest was lodged against the title by the 4th Respondent on 1st July 1985. They further averred that, as a matter of law and procedure, the subdivision of land can only be undertaken by the registered proprietor of the land, and not by any other person. Consequently, they denied the Petitioner's allegation that the 4th Respondent applied for and procured the subdivision of Land Parcel No. Mwerua/Kagio/3, and put the Petitioner to strict proof of that allegation. They nevertheless admitted that, following the subdivision, Land Parcel No. Mwerua/Kagio/1499 was registered in the name of the 4th Respondent. The Respondents maintained that no act or omission on their part amounted to a violation of the Petitioner's constitutional rights and prayed for the dismissal of the Petition. The 4th Respondent's Case: 7.The 4th Respondent filed a Response to the Petition dated 14th February 2023 as amended on 27th February 2025, and a replying affidavit sworn on the 14th February 2023. The amendments in the response to the petition were largely directed at correcting how the pleadings referred to the parties and incorporating subsequent developments arising from related proceedings.The 4th Respondent inter alia admits that the Petitioner was the registered proprietor of Land Parcel No. Mwerua/Kagio/3. His case, however, is that sometime in early 1984, the Petitioner agreed to sell two acres out of that parcel to the 4th Respondent's late father, Karani Kamunu, for a consideration of Kshs. 44,000/=. He avers that after his late father had commenced payment of the purchase price, he was authorized to take over the transaction, and by a written agreement dated 16th June 1984, the Petitioner agreed to sell the two acres to him upon the same terms. He states that he subsequently paid the balance of the purchase price in full. 8.The 4th Respondent further avers that upon receipt of the full purchase price, the Petitioner voluntarily undertook the process of subdividing Land Parcel No. Mwerua/Kagio/3 after obtaining the requisite Land Control Board consent. According to the 4th Respondent, the Petitioner also obtained the necessary consent to transfer Land Parcel No. Mwerua/Kagio/1499 to him, following which the parcel was transferred on 4th November 1985, and a title deed issued to him on 5th November 1985.He states that immediately after the transfer, he entered into possession of Land Parcel No. Mwerua/Kagio/1499 and has remained in open, continuous, and uninterrupted occupation thereof for over thirty-eight years. He avers that the Petitioner, who occupies the neighbouring parcel, Land Parcel No. Mwerua/Kagio/1498 has never previously challenged his occupation or ownership of the land. 9.The 4th Respondent further states that on 23rd September 2014, the Petitioner agreed to sell to him one-half acre out of Land Parcel No. Mwerua/Kagio/1498 for a consideration of Kshs.540,000/=, which he paid in full. He avers that when the Petitioner failed to complete the transaction, he instituted Kerugoya CMELC No. 22 of 2018 seeking specific performance. In his amended response, the 4th Respondent pleaded that the Petitioner had acknowledged, in his witness statement filed in the said suit, that he sold the half-acre due to financial difficulties after his property known as Kiine/Sagana/1259 had been advertised for sale.He further pleaded that the parties subsequently entered into a further agreement on 20th January 2017 granting the Petitioner additional time within which to complete the transfer, but that the Petitioner failed to honour that agreement. 10.The 4th Respondent also pleaded that judgment was subsequently delivered in Kerugoya CMELC No. 22 of 2018 on 21st November 2023, directing the Petitioner to transfer the half-acre portion to him or, in the alternative, refund the purchase price together with interest. He further pleaded that the Petitioner's counterclaim in that suit was dismissed.The 4th Respondent further averred that the Petitioner had also instituted Baricho MCELC No. 42 of 2022, in which he challenged the legality of the dealings relating to Land Parcel No. Mwerua/Kagio/3 undertaken on 4th November 1985 and sought declaratory and injunctive reliefs similar to those sought in the present Petition. According to the 4th Respondent, the Petitioner subsequently sought to withdraw that suit.On the basis of those matters, the 4th Respondent maintains that the transfer of Land Parcel No. Mwerua/Kagio/1499 was lawful and undertaken by the Petitioner himself after completion of the sale transaction. He further contends that the present Petition is incompetent, amounts to an abuse of the court process, and ought to be dismissed. The Petitioner's Submissions: 11.The learned counsel for the Petitioner filed written submissions dated 23rd May 2025, and inter alia submitted that the subdivision of Land Parcel No. Mwerua/Kagio/3 and the resultant registration of Land Parcel No. Mwerua/Kagio/1499 in favour of the 4th Respondent were unlawful and fraudulent. He relied on the affidavit of Police Sergeant Biffent Otieno Ouko, together with the investigations undertaken at the Lands Registry, contending that the absence of the mutation forms, transfer documents, Land Control Board consent, and other records relating to the subdivision demonstrated that the transaction was not undertaken in accordance with the law. 12.The Petitioner submitted that, having become the registered proprietor of Land Parcel No. Mwerua/Kagio/3 on 9th January 1985, no lawful subdivision or transfer could have been undertaken without his participation, consent and execution of the requisite documents. He argued that his late father lacked legal capacity to transact in respect of the suit property after the Petitioner became the registered proprietor, and that the alleged sale agreement relied upon by the 4th Respondent could not confer any proprietary interest in the land.With regard to the agreement dated 23rd September 2014, the Petitioner acknowledged entering into the transaction, but submitted that it was necessitated by financial difficulties and could not validate or cure the alleged irregularities surrounding the subdivision undertaken in 1985. He therefore urged the Court to find that his constitutional right to property had been violated and to grant the relief sought in the Petition. The 1st, 2nd and 3rd Respondents' Submissions: 13.The learned counsel for the 1st, 2nd, and 3rd Respondents filed written submissions dated 4th August 2025, and inter alia submitted that the Petition did not meet the threshold for constitutional petitions as set out in the case of Anarita Karimi Njeru versus Republic (No. 1) (1979) 1 KLR and reaffirmed in Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR.It was their contention that the Petitioner merely cited constitutional provisions without demonstrating with precision the manner in which those provisions had been violated by the Respondents. They further submitted that the dispute before the Court was essentially a private land dispute concerning ownership and registration of land, and that it did not disclose any constitutional question warranting the invocation of the Court's constitutional jurisdiction. 14.The Respondents also submitted that public officers acted on documents presented for registration and that the mere absence of historical registry documents more than four decades after the impugned transaction did not, without more, establish fraud or illegality. They urged the Court to uphold the presumption of regularity attaching to official acts and to find that the Petitioner had failed to prove any fraudulent or unlawful conduct on the part of the 1st, 2nd, and 3rd Respondents. Accordingly, they urged the Court to dismiss the Petition with costs. The 4th Respondent's Submissions: 15.The learned counsel for the 4th Respondent filed written submissions dated 21st January 2026, and inter alia submitted that his client had lawfully acquired Land Parcel No. Mwerua/Kagio/1499 pursuant to the sale agreement dated 16th June 1984, after paying the agreed purchase price in full, whereupon the Petitioner voluntarily procured the subdivision of Land Parcel No. Mwerua/Kagio/3 and transferred the resultant parcel to him. He submitted that he has remained in open, peaceful, and uninterrupted occupation of the land for over four decades.The 4th Respondent further submitted that the Petition is barred by the doctrine of res judicata and constitutes an abuse of the court process. He relied on the proceedings and judgment in Kerugoya CMELC No. 22 of 2018, where the Court ordered the Petitioner to transfer one-half acre out of Land Parcel No. Mwerua/Kagio/1498 or refund the purchase price together with interest, and on Baricho MCELC No. 42 of 2022, in which the Petitioner had similarly challenged the validity of the 1985 transactions. He argued that the Petitioner ought to have raised any challenge to the validity of the subdivision in those proceedings and was therefore barred from re-litigating the issue through a constitutional petition. 16.The 4th Respondent further invoked the doctrine of approbation and reprobation, submitting that the Petitioner had accepted and benefited from the 1985 subdivision by obtaining title to Land Parcel No. Mwerua/Kagio/1498 and subsequently selling part of that parcel to the 4th Respondent in 2014. He argued that the Petitioner could not, on the one hand, rely on the subdivision as the basis of a sale transaction while, on the other, seek to invalidate the very process that created the title under which he transacted.Lastly, the 4th Respondent submitted that the Petition was statute-barred under Section 7 of the Limitation of Actions Act, the impugned registration having taken place in 1985, and that the Petitioner had failed to prove fraud to the standard required by law. He accordingly urged the Court to dismiss the Petition with costs. 17.The following issues arise for determination by the court in this petition:a.Whether the Petition properly invokes the Court's constitutional jurisdiction and meets the required pleading threshold.b.Whether the Petition is procedurally barred (res judicata, limitation, and abuse of process).c.Whether the Petitioner has proved any legal basis for impeaching the 4th Respondent's title.d.Whether the Petitioner is entitled to the constitutional and other reliefs sought.e.Who pays the costs? 18.The court has carefully considered the grounds on the petition and responses filed, affidavit evidence, submissions by the learned counsel, superior court decisions cited and comes to the following determinations:a.The Petition is framed as one seeking enforcement of the Petitioner's fundamental rights and freedoms under Articles 10, 27, 28, 40, 60, 64, and 68 of the Constitution. The Petitioner seeks declarations that those rights were violated, an order of mandamus compelling the cancellation of the 4th Respondent's title to Land Parcel No. Mwerua/Kagio/1499, damages and other consequential reliefs. Before considering those prayers, the Court must first determine whether the dispute properly invokes its constitutional jurisdiction.b.The applicable principles in constitutional petitions are now well settled. In the case of Anarita Karimi Njeru versus Republic (1979) KLR 154, the Court held inter alia that a party alleging a violation of constitutional rights must plead with reasonable precision the constitutional provisions alleged to have been infringed, the manner of the alleged infringement, and the relief sought. The Court of Appeal reaffirmed that principle in the case of Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, observing that the requirement of precision enables both the Court and the opposing parties to understand the nature of the complaint and to respond to it appropriately.c.Equally settled is the principle that constitutional litigation should not be invoked where the dispute is capable of being effectively resolved through an existing statutory framework. In the case of Speaker of the National Assembly versus Karume [1992] KLR 21, the Court of Appeal held that where the Constitution or statute has provided a clear procedure for redress of a grievance, that procedure ought to be strictly followed. The court at paragraph 15 held that:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed...”That principle was echoed in the case of Momanyi versus Chairperson, the Judicial Service Commission, Hon Lady Justice Martha Koome & another (Petition E807 of 2025) [2026], affirming the doctrine of constitutional avoidance, when the court held that:“ 24Whereas this court may hear petitions alleging violations of rights and fundamental freedoms enshrined in the Bill of Rights of our Constitution, the doctrine of avoidance calls on this court not to settle disputes that can conveniently be dealt with in other fora. 25In the case of Ibrahim Wakhanyanga & 2 others versus Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] KEELC 1072 (KLR), the court held that: “17. One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan versus Paul Masinde Simidi & another [2019] eKLR as follows:Where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra)...” d.Applying those principles to the present Petition, it is apparent that the Petitioner's grievance arises from the alleged unlawful subdivision of Land Parcel No. Mwerua/Kagio/3 on 4th November 1985, the subsequent creation of Land Parcel Nos. Mwerua/Kagio/1498 and 1499, and the registration of Parcel No. 1499 in the name of the 4th Respondent. The substantive relief sought is the cancellation of the 4th Respondent's title and the restoration of the Petitioner's proprietary interest.The determination of those questions necessarily calls for an examination of the validity of the impugned land transactions, the legality of the subdivision and transfer process, and whether the resultant title is liable to impeachment. Those matters are comprehensively governed by the land statutes and are amenable to determination in an ordinary suit.e.Although the Petitioner alleges violations of several constitutional provisions, the alleged infringements depend entirely on the asserted unlawfulness of the land transaction. The Petition does not disclose any independent constitutional question requiring the exercise of this Court's jurisdiction under Articles 22 and 23 of the Constitution. In substance, it seeks to challenge the validity of a land transaction and the resultant registration of title.f.The Court further notes that while the Petition repeatedly characterizes the impugned subdivision and transfer as fraudulent, it does not plead any particulars of fraud against any of the Respondents. Instead, it sets out particulars of the alleged constitutional violations. Fraud is a distinct cause of action which must be specifically pleaded and particularised.Where a party seeks to impeach a registered title on the basis of fraud or illegality, the proper course is to institute an ordinary action in which those allegations are distinctly pleaded and determined under the applicable statutory framework. The omission to particularise fraud further underscores that the present dispute was not properly brought as a constitutional petition.g.Having carefully considered the pleadings and the reliefs sought, I am satisfied that the Petition merely clothes an ordinary land dispute in constitutional language. The Constitution is not intended to replace ordinary civil remedies where Parliament has provided an adequate legal framework for the determination of disputes concerning land ownership, registration, and title.Accordingly, I find that the Petition does not disclose a constitutional cause of action warranting the invocation of this Court's constitutional jurisdiction. It fails to meet the threshold established in the case of Anarita Karimi Njeru versus Republic [supra] and reaffirmed in Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 Others [supra].h.Having reached the conclusion that the present Petition does not properly invoke this Court's constitutional jurisdiction, it would serve no useful purpose to determine the remaining issues raised by the parties touching on, inter alia, res judicata, limitation, the alleged fraud, and the merits of the impugned land transactions. Those issues would arise for determination only if the Petition is properly before the Court as a constitutional petition. Having found otherwise, any pronouncement thereon would be unnecessary for the determination of the dispute before me. The petition is therefore incompetent and is for dismissal.i.Having found the petition was primarily in pursuit of a private benefit, and the petitioner has failed, then he should pay the respondents’ costs. 19.In view of the foregoing conclusions in this petition, the court finds and orders as follows:a.That the petition is without merit and is hereby dismissed.b.That the petitioner will meet the respondents’ costs. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED THIS 8TH DAY OF JULY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Petitioner –Mr. Ndungu ChegeRespondents – M/s Gitau for Kiongo for 1st to 3rd Respondents and M/s Ndwiga for Magee for 4th Respondent.Kinyua/Charles Court assistantS. M. KIBUNJAELC JUDGE