https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4668

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCL PETITION NO. E005 OF 2024** **IN THE MATTER OF CHAPTER FOUR OF THE CONSTITUTION OF KENYA 2010** **-AND-** **IN THE MATTER OF ARTICLES 10, 19, 20, 21, 22, 23(3)(f), 40, 47, 48, 50 AND 73 OF THE CONSTITUTION OF KENYA** **-AND-** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS UNDER ARTICLES 10, 19, 20, 21 ,22, 23, 40, 47 50 AND 73 OF THE CONSTITUTION OF KENYA 2010** **-AND-** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PRECEDURE RULES** **-AND-** **IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT, CAP 7 LAWS OF KENYA** **-AND-** **IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA** **AND** **IN THE MATTER OF THE LAND REGISTRATION ACT, CAP 300 LAWS OF KENYA** **AND IN THE MATTER OF THE LAND PARCEL NO. KISAU/NDULUKU/685** **AND** **IN THE MATTER OF AN APPEAL TO THE CABINET SECRETARY MINISTRY OF LANDS, PUBLIC WORKS, HOUSING AND URBAN DEVELOPMENT CAE NO. 55 OF 2001** **AND** **IN THE MATTER OF ALLEGED DEPRIVATION OF PROPERTY OF THE PETITIONER** **-BETWEEN-** **DAVID MUKEKI KIUNGUA ….…...............................................PETITIONER** **-VERSUS-** **ISAAC MUTHAMA KIMILU………………………………1ST RESPONDENT** **THE CABINET SECRETARY MINISTRY OF LANDS, PUBLIC WORKS, HOUSING AND URBAN DEVELOPMENT........................2ND RESPONDENT** **THE CHIEF LAND REGISTRAR OF TITLES...................3RD RESPONDENT** **DIRECTOR OF LAND ADJUDICATION & SETTLMENT...........................................................................4TH RESPONDENT** **THE ATTORNEY GENERAL...............................................5TH RESPONDENT** **JUDGMENT** **Introduction** 1. The Petitioner filed this constitutional petition against the Respondents in which he claimed the following reliefs: 2. **A declaration that the Petitioner’s right to Fair Administration Action under Article 47 of the Constitution as read together with the Fair Administration Action Act, 2015 as well as his right to a fair hearing under Article 50 (1) of the Constitution has been violated.** 3. **A declaration that the Petitioner’s right to own property under Article 40 of the Constitution has been violated.** 4. **An order of certiorari be issued to remove to this court for the purpose of being quashed the decision of the Cabinet Secretary Ministry of Lands, Public Works, Housing and Urban Development through the Deputy County Commissioner, Mbooni East Sub-county dated 9th November, 2018 in appeal case number 55 of 2001 in respect of title number Kisau/Nduluku/685 between the Petitioner and the 1st Respondent.** 5. **An order of revocation and cancellation of the registration of the 1st Respondent as the proprietor of title number Kisau/Nduluku/685 be issued.** 6. **An order be made that title number Kisau/Nduluku/685 belongs to the Petitioner.** 7. **An order compelling the 3rd Respondent to register the Petitioner’s proprietary interest of ownership of title number Kisau/Nduluku/685 in the register of titles and issue him with a new title deed within 30 days of this order.** 8. **Any other orders that this court may deem just and fit.** 9. **The Petitioner be awarded the costs of this petition.** **Background** 1. The Petitioner’s contention is that in 1986, he purchased LR No. Kisau/Nduluku/685 (suit property) from Mbaa Maii family. The suit property was sold to him by five brothers namely, Mbalu Nzivo, Kanzi Nzivo, Josephat Lingwa, Muasya Lingwa and Malamu Kinyolo Lingwa. 2. The five brothers are step brothers to David Kimilu Nzivo the 1st Respondent’s father who is now deceased (the deceased). The deceased’s other brothers are Nziu Nzivo and Mutiso Nzivo. The eight (8) brothers are all grandsons of Mumo who had huge land traversing three sublocations. The first portion was at Mukimwani sublocation, the second was at Nduluku sublocation and the third was at Usalala sublocation. 3. It is alleged that the deceased together with his two brothers sold the land at Mukimwani without informing the other five step brothers. The five brothers then decided to also sell the land at Nduluku to the Petitioner. 4. During the land adjudication, the entire land at Nduluku sublocation was recorded in the Petitioner’s name and was assigned plot No. 529. The deceased who was an education officer was away at Kakamega during the adjudication process. When he came back, he blamed his step brothers for selling the Nduluku land without informing him and claiming that he ought to have been given priority as he is the one who had been taking care of the land. The deceased decided to purchase the land from his step brothers. The five step brothers through the deceased attempted to refund the money paid by the Petitioner but the Petitioner declined to take the refund. 5. The five step brothers of the deceased then decided to equally share the money paid to them by the deceased for purchase of the Nduluku land. The deceased then filed land committee case No. 17/NDU/89 against the Petitioner contesting the Petitioner’s ownership of plot 529. The deceased’s case at the committee stage was dismissed and the committee found that the entire parcel belonged to the Petitioner. 6. The deceased filed an appeal to the Arbitration Board vide case No. ARB/B/NDU/19/89. The Arbitration Board made a verdict that parcel No. 529 be subdivided into two portions. Following the verdict of the Arbitration Board, the deceased was given a portion which is now LR No. Kisau/Nduluku/685 (suit property) and the Petitioner remained with LR No. Kisau/Nduluku/529. 7. The Petitioner filed an objection to the Land Adjudication Officer vide Objection case No. OBJ No. 98. In a verdict given on 20th August, 1993, the Petitioner’s objection was allowed and the verdict of the Arbitration Board was set aside. On 21st July, 1999, the Petitioner was registered as proprietor of Kisau/Nduluku/685 and a title in his name issued on 22nd April, 2002. 8. The deceased later filed an appeal to the minister from the decision of the Land Adjudication Officer. In a verdict rendered on 9th November, 2018, the Cabinet Secretary overturned the decision of the Land Adjudication Officer and upheld the decision of the Arbitration Board. The title to the suit property was registered in the deceased’s name on 5th June, 2002 the same day a restriction was registered against the title pending determination of appeal to the Minister. 9. After the decision of the Cabinet Secretary rendered on 9th November, 2018, the 1st Respondent carried out the process of succession in respect of the estate of the deceased. He became registered as owner of the suit property on 14th December, 2023 by way of transmission. **Petitioner’s contention** 1. The Petitioner contends that the Cabinet Secretary had no jurisdiction to hear the appeal which was filed 8 years from the decision of the Land Adjudication Officer. He also contends that issuance of title to the 1st Respondent when he had title in his name amounted to cancellation of his title and that the chief Land Registrar had no jurisdiction to cancel his title. He contends that it is only the court which has power to cancel title. 2. The Petitioner further contends that the Cabinet Secretary’s decision to award the suit properly to the deceased was arbitrary and deprived the Petitioner of his right to property. 3. The Petitioner further contends that the 1st Respondent had no locus standi to prosecute the appeal by the deceased as he had no locus standi to do so in that he had not obtained letters of administration ad litem in respect of the estate of the deceased. **First Respondent’s Contention** 1. The 1st Respondent opposed the Petitioner’s petition based on a replying affidavit sworn on 3rd March, 2025. The 1st Respondent contends that the appeal to the Minister was filed within the required time and that when he appeared before the Minister, he made an oral application to be allowed to proceed with the appeal filed by the deceased. The application was allowed and he proceeded with the appeal. He contends that the Petitioner did not raise any issue on the late prosecution of the appeal. 2. The 1st Respondent further contends that the Petitioner is intent on disinheriting him of the suit property. The petitioner had filed Judicial Review No. Makueni ELC JR E001 of 2023 but the same was dismissed. He contends that the petition herein is res judicata and ought to be dismissed. **The Second to Fifth Respondents’ Contention** 1. The 2nd to 5th Respondents opposed the Petition through a replying affidavit sworn on 4th November, 2024. The Respondents state that during the adjudication process, parcel 529 had cases. When the case reached objection stage, the Land Adjudication Officer set aside the Arbitration Board’s verdict vide decision rendered on 20th August, 1993. The deceased intimated that he was appealing against the decision of the Land Adjudication Officer vide letter of 8th September, 1993. The deceased filed the appeal to the Minister on 4th October, 1993 which was the 45th day from the day judgment of 20th August, 1993 was delivered. The appeal was therefore within the 60 days period required. 2. The Land Adjudication Officer forwarded the appeal to the Director of Land Adjudication and Settlement on 23rd May, 2000. The appeal by the deceased was processed and was given appeal No. 55 of 2001. The Minister applied Section 13 of the Land Adjudication Act and allowed the 1st Respondent to prosecute the deceased’s appeal. A verdict was made on 9th November, 2018. Title was issued to the deceased in accordance with provision of Section 29 of the Land Adjudication Act. **Parties Submissions** 1. The parties were directed to file written submissions. The Petitioner filed submissions dated 6th November, 2025. The 1st Respondent filed submissions dated 16th December, 2025.The 2nd to 5th Respondents filed submissions dated 29th June, 2026. **Petitioner’s Submissions** 1. The Petitioner submitted that the appeal to the Minister was made outside the statutory period of 60 days. The appeal herein was commenced when the present Cabinet Secretaries were called Ministers. They are now called Cabinet Secretaries. 2. Section 29 (1) of the Land Adjudication states as follows: 3. **Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by—** 4. **delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal;** 5. The Petitioner further submitted that the Minister had no jurisdiction to cancel the title which he had as cancellation of title or rectification of the same is a preserve of the Environment and Land Court. Reliance was placed on Section 80(1) and (2) of the Land Registration Act which states as follows: 6. **Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.** 7. **The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.** 8. The Petitioner submitted that during the hearing of the appeal by the Cabinet Secretary, it was obvious that the Petitioner had title and that what the 1st Respondent would have done was to move to court for cancellation of the title in the name of the Petitioner and not by issuance of a new title in the deceased’s name by the Chief Land Registrar. 9. The Petitioner submitted that the 2nd Respondent exceeded his powers when he issued another title when there was already another one in existence. He submitted that the 1st Respondent ought to have moved the court for rectification of the title. He relied on the case of **Republic –vs- Cabinet Secretary Ministry of** **Lands & Physical Planning & 3 Others Exparte John Mbivi Njagi, Joseph Kagura Mbugi (Interested Party) (2021) eKLR.** 10. The Petitioner further submitted that the Cabinet Secretary did not consider the previous records and that this is why he arrived at a finding that the Petitioner had not produced evidence on how he was awarded the land. It was also submitted that the Cabinet Secretary relied on fresh evidence without leave to do so. Reliance was placed on the case of **Matwanga Kilonzo –vs- District Commissioner Kitui & Another (2021) EKLR. Further reliance was placed on the case of Republic –vs- Special District Commissioner & Another (2006)** **eKLR.** **First Respondent’s Submissions** 1. The 1st Respondent submitted that the appeal was filed within the stipulated time. On the submission by the Petitioner that the Cabinet Secretary did not call those who sold land to the Petitioner, he submitted that at appeal level, he could not have called those who sold land to the Petitioner as that would have amounted to hearing fresh evidence. 2. The 1st Respondent submitted that the findings of the Cabinet Secretary touched on issues of clarification particularly when the Petitioner said that he had title and the Cabinet Secretary wondered how that was possible when there was a pending appeal. The title held by the Petitioner was not available before the Land Adjudication Officer and the Cabinet Secretary observed that it was not produced. It was submitted that what the Cabinet Secretary did did not amount to taking of fresh evidence. 3. On the issue of alleged cancellation, the 1st Respondent submitted that the Cabinet Secretary did not cancel the title by the Petitioner. He simply overturned the decision of the adjudication officer and the Chief Land Registrar proceeded to process title as the process following the Cabinet Secretary’s verdict paved way for issuance of title. **The Second to Fifth Respondents’ Submissions** 1. The 2nd to 5th Respondents Submitted that the appeal by the deceased was made within the 60 days given under the Land Adjudication Act. The Respondents also submitted that there was no violation of Article 47 of the Constitution. On locus standi, the Respondents submitted that the Land Adjudication Act follows procedure which do not strictly call for invocation of the Civil Procedure Act as relates to substitution of parties. 2. On the issue of cancellation of title, the Respondents submit that the Land Registrar would not have issued a title if there was another one in existence. The Petitioner did not produce any green card to show the existence of the title which he alleges to have obtained in 2002. On allegations of violation of Article 40 of the Constitution, the Respondents submit that that Article does not extend to property which is found to have been unlawfully acquired. **Analysis and Determination** 1. I have carefully considered the Petitioner’s petition, the opposition to the same by the Respondents as well as the submissions by the parties. The issues which emerge for determination are firstly, whether the 1st Respondent had locus standi to proceed with the appeal which had been filed by the deceased. Secondly, whether the appeal by the deceased was filed within the prescribed period of 60 days. Thirdly, whether the Chief Land Registrar was right in issuing title in the name of the deceased. Fourthly, whether the constitutional rights of the Petitioner under Articles 40 and 47 of the Constitution were violated. Fifthly, whether the Petitioner is entitled to the reliefs in the petition. **Whether the 1st Respondent had locus standi to proceed with the appeal which had been filed by the deceased.** 1. It is the Petitioner’s contention that the 1st Respondent should have obtained a grant of letters of administration ad litem before taking over the appeal which had been started by the deceased. It is important to note that the process leading to the filing of this petition started from the adjudication under the Land Adjudication Act. This Act has a special procedure which is applied in resolving disputes upto the stage of issuance of title where the appeal process has been determined by the Cabinet Secretary whose decision is final subject to filing of judicial review proceedings or filing of constitutional petition as in this case. 2. Where the Appellant dies at any stage of the appeal process provided for under the Act, any person who is shown to have been related to the deceased is allowed to carry on with the appeal. There is no requirement for one to obtain grant of letters of administration to do so. This is because the proceedings under the Act are not strictly bound by the Civil Procedure Act where it is a requirement that there has to be substitution by a legal representative before one can take over the proceedings on behalf of a deceased’s estate. 3. In the case of **Dominic Musei Ikombo –vs- Kyule Makau (2019) eKLR**, the Court of Appeal held that in proceedings before the District Commissioner on behalf of the Minister under the Land Adjudication Act, there is no requirement for strict adherence to the Civil Procedure Act or Law of Succession. The Court further held that under Section 13 of the Land Adjudication Act representatives or guardians according to African customary law are recognized and there is no need of producing letters of administration. 4. In the instant case, the 1st Respondent appeared before the Deputy County Commissioner, Mbooni East and made an application to be allowed to proceed with the appeal filed by the deceased. This was allowed. I therefore find that the 1st Respondent being son of the deceased, he had locus standi to proceed with the appeal filed by the deceased. **Whether the appeal by the deceased was filed within the prescribed period of 60 days.** 1. The Petitioner argued that the appeal by the deceased was filed in 2001 whereas the decision appealed against was rendered on 20th August, 1993 and that therefore the Cabinet Secretary did not have jurisdiction to entertain an appeal filed outside the 60 days granted. 2. Section 29(1) of the Land Adjudication Act provides as follows: **Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by—** 1. **Delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and** 2. **Sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final.** 3. Contrary to the Petitioner’s contention that the appeal was filed outside the 60 days allowed, the 2nd to 5th Respondents attached documents in their replying affidavit to show that the deceased expressed his intention to appeal the decision of the Land Adjudication Officer delivered on 20th August, 1998 vide his letter dated 8th September, 1993. The deceased then proceeded to file the appeal on 23rd September, 1993 which was within the 60 days allowed for appeal. 4. The appeal was then processed administratively and given appeal No. 55 of 2001 after it was confirmed that the deceased had paid the requisite amount. Infact in the Petitioner’s submissions, counsel for the Petitioner abandoned the argument that the appeal was filed outside the 60 days saying that the intention was not to mislead the court as he had assumed that the appeal was filed in 2001 after seeing the appeal case number. He stated that he had not seen the appeal documents contained in the affidavit of the 2nd to 5th Respondents. I therefore find that the appeal was filed within the statutory period of 60 days. **Whether the Chief Land Registrar was right in issuing title in the name of the deceased** 1. The appeal before the Cabinet Secretary was heard and determination was made on 9th November, 2018. The process of implementation of the Cabinet Secretary commenced. An amended copy of the duplicate adjudication record which was duly certified in accordance with Section 29(3) (a) and (b) of the Land Adjudication Act was sent to the District Land Registrar Makueni. A title in the name of the deceased was issued. The restriction which had been registered against title to the suit property on 5th June, 2002 pending appeal to the Minister was removed on 20th April, 2022 and title deed registered in the name of the deceased on 3rd May, 2022. 2. On 14th December, 2023 the title to the suit property was registered in the name of the 1st Respondent through transmission. When the Petitioner filed Judicial Review No. E001 of 2023, a restriction was filed against the title to the suit property on 5th June, 2024 pending hearing and determination of the Judicial Review proceedings. The acquisition of title in the deceased’s name which was subsequently transmitted to the 1st Respondent was obtained lawfully. 3. The title held by the Petitioner which was allegedly issued on 22nd April, 2002 is not supported by any legal green card. When the Petitioner allegedly obtained his title on 22nd April, 2002 there was a pending appeal to the Minister which had not been determined. The title which the Petitioner obtained during the pendency of the appeal before the Minister if any was irregular. In the case of **Enton Njuki** **Makungo –vs- R & 2 Others** it was held that a title issued while an appeal is pending is irregular. **Whether the Constitutional rights of the Petitioner under Articles 40 and 47 of the Constitution were violated** 1. The title which the petitioner allegedly obtained on 22nd April, 2002 was irregularly obtained. Article 40(6) of the Constitution does not offer protection to title which is found to have been irregularly obtained. The Land Adjudication Act provides that where there is an appeal pending, no title can be processed before the appeal is determined. This is because, the Land Registrar is supposed to register a restriction and it is beyond comprehension how the Petitioner managed to obtained his title. 2. The Petitioner’s constitutional rights under Article 47 were not violated. Article 47 of the Constitution provides as follows: 3. **Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.** 4. **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.** 5. **Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—** 6. **Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and** 7. **Promote efficient administration.** 8. The material placed before the court show that the Petitioner was given every opportunity at every stage. The allegations that the Deputy County Commissioner took fresh evidence is not true. What the Deputy County Commissioner did was to observe that the Petitioner had not produced the title which he was alleging to have obtained. This did not amount to taking of fresh evidence. The complaints by the Petitioner touching on Article 47 were merely attacking the findings of the Deputy County Commissioner as opposed to the process leading to the decision. **Disposition** 1. From the above analysis, I find that the Petitioner’s petition is devoid of merit and none of the reliefs can be granted. The Petitioner’s petition is dismissed with costs to the Respondents. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Mukungi for Petitioner Ms. Njuguna for 2nd to 5th Respondents. Court assistants – Kilonzo and Musyoki