https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3567

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **CONSTITUTIONAL PETITION NO. E011 OF 2025** GLADWELL KINYA MWITI [Suing as the legal representative of the Estate of the SHADRACK MWITIMUGUNA………………………..…..DECEASED VERSUS THE LAND REGISTRAR, MERU……………………….1ST RESPONDENT THE HONORABLE ATTORNEY GENERAL …………2ND RESPONDENT **JUDGMENT** 1. The Petitioner herein has approached the court *vide* the petition dated the 16.10.2025. The Petitioner, who is the legal administratix of Shadarack Mwiti Muguna [deceased] seeks the following reliefs: 2. A declaration that the decision and actions of the 1st Respondent to purportedly revoke and/or cancel the Petitioner’s registration of Plot No. L R Meru Municipality Block 1/253 vide Gazette Notice No. 3450 were illegal, unconstitutional null and void and amounted to violation of the Petitioner’s fundamental right to property. 3. An order be issued directing the 1st Respondent to rectify and/or reinstate the name of the Petitioner as an absolute proprietor of plot no. LR Meru Municipality Block 1/253. 4. A permanent prohibitory injunction restraining the Respondent whether by themselves, their servants, agents and/or any person acting at their behest whomsoever from alienating, issuing any title and/or license, registering any encumbrance and/or interfering in any way with the Petitioner’s utilization and possession of the Plot No. Meru Municipality Block 1/253 5. An order against the Respondent s for payment of general damages for violation of the Petitioner’s fundamental constitutional rights to property. 6. Costs of the suit. 7. Such other/further orders as this court may be pleased to make as it deems just. 8. The Petitioner has raised various grounds in the body of the petition. The grounds are: The suit property belonged to and was registered in the name of Shadrack Mwiti Muguna [now deceased]; the deceased was duly issued with a certificate of lease; the certificate of lease was processed and issued by the designated land registrar; the deceased entered upon and took possession of the suit property; the deceased developed the suit property; the suit property forms part of the estate of the deceased; and the interest of the deceased in the suit property cannot be dealt without due regard to the constitution and the law. 9. Additionally, it has been posited thus: The first Respondent proceeded to and generated gazette notice number 3450; the gazette notice touched on and concerned the suit property; the 1st Respondent degazetted and cancelled the certificate of title in favour of the deceased; the actions of the 1st Respondent were undertaken without lawful authority; the 1st Respondent is not seized of capacity/authority, or mandate to cancel certificate of title; the actions complained of were *ultra vires* ; the actions were are illegal/unlawful and unconstitutional. 10. Flowing from the foregoing, the Petitioner has sought the intervention of the court and same has invited the court to find and hold that the actions complained of were/illegal. In addition, the Petitioner has invited the court to issue a declaration that the impugned gazette notice has violated the rights of the Petitioner and by extension the estate of the deceased. 11. The Respondents duly entered appearance and thereafter filed a replying affidavit sworn on the 27.01.2026. The deponent of the replying affidavit had contended thus: the suit property belonged to the County council of Meru; the county council of Meru [now defunct] was the lessor of the suit property; it is the lessor of the suit property who undertook the cancellation of the title; the lessor of the suit property has not been joined in the subject proceedings; the orders sought *vide* the subject petition will impact upon the lessor; the non-joinder of the lessor negates the subject suit; and the Petitioner has not established a basis to warrant the issuance of the orders sought. 12. Additionally, the Respondents have posited that there is another suit; namely; Meru ELC No. 18 of 2022, which touches on and concerns ownership of the suit property. Further, it has been contended that the said suit relates to a claim of ownership between the Petitioner and a third party. To this end, it has contended that the petition has therefore not been filed in good faith. 13. Premised on the foregoing, the Respondents have posited that the subject petition reeks of mala-fides; and that same is intended to [sic] defeat the ends of justice. 14. The subject petition came up for directions on the 28.05.2026, whereupon learned counsel for the Petitioner sought directions of the court as pertains to the hearing and disposal of the petition. Moreover, counsel proposed to have the petition canvassed by way of affidavit evidence and written submissions. 15. With the concurrence of learned counsel for the Respondents, the court proceeded to and issued directions on the hearing and disposal of the petition. The directions were: The petition shall be canvassed on the basis of affidavit evidence; the Petitioner shall file and serve written submissions within 7 days from the date of the directions; the Respondents shall file and serve written submissions within 7 days from the date of service; and the Petitioner shall be at liberty to file rejoinder submissions [if any] before the return date. 16. The Petitioner filed written submissions dated the 03.06.2026; and wherein the Petitioner has highlighted four [4] key issues. The issues are: Whether the deceased was the lawful proprietor of the suit property prior to the illegal revocation of title; Whether the 1st Respondent has powers to revoke/cancel the Petitioners certificate of title; whether the Petitioners constitutional rights were violated; and Whether the petition is barred by the existence of [sic] Meru ELC Case no. E018 of 2022 or otherwise. 17. Regarding the first issue, learned counsel for the Petitioner has submitted that the suit property previously belonged to and was registered in the name of Elizabeth Kaliuntu Angaine. Furthermore, it has been submitted that the said Elizabeth Kaliuntu Angaine [namely, the Vendor] sold and transferred the suit property to Shadarack Mwiti Muguna [deceased]. To this end, it was posited that Shadrack Mwiti Muguna acquired lawful title to and in respect of the suit property. 18. Secondly, it has been submitted that the 1st Respondent [land registrar] had no mandate/authority /jurisdiction to cancel a certificate of title or certificate of lease. Nevertheless, it was submitted that the 1st Respondent herein proceeded to and generated a gazette notice number 3450 of 2010 and purported to revoke the certificate of lease in favour of Shadrack Mwiti Muguna. It has been submitted that the impugned actions were taken without jurisdiction and same were thus ultra-vires. 19. The next issue that has been argued relates to whether the Petitioner’s constitutional rights were violated by the offensive actions. To this end, it has been submitted that Shadrack Mwiti Muguna [deceased] acquired rights to and in respect of the suit property. In addition, it was posited that the proprietary rights which vested in favour of the deceased could not be cancelled without regard to the due process of the law. 1. Finally, it has been submitted that owing to the actions by /on behalf of the 1st Respondent, the Petitioner has suffered loss and thus same is entitled to compensation. To this end, an award of Kshs. 5,000,000 only has been proposed as sufficient recompense. 2. Other than the foregoing, it has been submitted the Meru ELC No. E018 of 2022 which has been referenced by the Respondents abated following the death of the of the parties. In particular, it has been pointed out that the said suit abated on the 19.02.2025 by operation of the law; and that same is *non-existent*. 3. The Respondents filed written submissions dated the 08.06.2026 and wherein same have raised and highlighted four [4] key issues. The issues are: The certificate of lease was cancelled/revoked by the county council of Meru and not the 1st Respondent; the county council of Meru has not been joined and hence the petition is incompetent; the orders [if any] issued will affect the county council of Meru which is not a party; and that the suit property is the subject of another suit, namely; Meru ELC E018 of 2022. 1. Though the Respondents isolated the foregoing issues, learned counsel did not venture forward to address how and in what manner the cancellation was undertaken by the county council of Meru [now defunct]. In addition, learned counsel also did not address her legal mind to the copy of the gazette notice which clearly shows that the source of the de-gazettement of the certificate of lease was the 1st Respondent. 1. Moreover, counsel referenced ELC No. 18 of 2022 which is said to concern ownership of the suit property. Nevertheless, counsel did not address whether the ownership of the suit property can be canvassed where the title/certificate of lease stands revoked/canceled. 2. Be that as it may, learned counsel for the Respondents invited the court to find and hold that the subject petition has been filed in bad faith; and same is intended to defeat the ends of justice. In this regard, the court has been implored to dismiss the petition and to award costs to the Respondents. 1. Having reviewed the petition dated the 16.10.2025; the supporting affidavit thereto; the replying affidavit in opposition thereto; and upon consideration of the written submissions filed by /on behalf of the respective parties, three [3] issues crystalize for consideration and determination. The issues are: Whether the 1st Respondent the requisite jurisdiction to cancel certificate of title or certificate of lease or otherwise; Whether the impugned actions violated the constitutional rights of the Petitioner or otherwise; and What reliefs [if any] ought to be granted. 2. Regarding the first issue, it is trite and settled that a particular officer; government department; authority; state instrumentality; state agency; or organ can only exercise the statutory powers bestowed upon or vested in the said body. Suffice it to posit that no authority or person can undertake an action that lies outside its statutory mandate. Suffice it to state that if [or where] such an action is taken, then the impugned action will be ultra-vires; and a nullity for all intents and purpose[s]. 3. As pertains to the subject matter, there is no gainsaying that the power to revoke or cancel a certificate of title/lease, vests in a court of law and not the land registrar. To this end, the 1st Respondent did not have the requisite authority or mandate to generate/publish a gazette notice geared towards cancelling the title in favour of Shadrack Mwiti Muguna [deceased]. 4. To my mind, the action by and on behalf of the 1st Respondent was undertaken without authority. The impugned actions were ultra vires the mandate of the 1st Respondent . The actions complained of was utterly illegal, and unlawful and constituted abuse of office. 5. Without belaboring the point, I wish to underscore that the question as to whether a Land Registrar or the Registrar of titles can cancel or revoke a certificate of title/lease was addressed and settled in the case of **Kuria Greens Limited versus the Registrar of Titles and another [2011] eKLR.** The court [per D K Musinga – Judge as he then was ] held that the Registrar of titles has no capacity to cancel a certificate of title. 6. Additionally, the forgoing position was reiterated and reaffirmed in the case of **Isaack Wanjohi Gathangu versus the Registrar of title and the Attorney General [2012] eKLR.** 7. *In a nutshell*, I come to the conclusion that the impugned actions by and on behalf of the 1st Respondent, was undertaken without lawful authority. Moreover, the impugned actions were undertaken without regard to the due process of the law. [ See the holding of the Court of Appeal in the case of **County Assembly of Kisumu versus The Clerk, County Assembly Service Board-Kisumu County Assembly and Others [2015] Eklr-paragraphs 72 and 73 thereof**]. 8. The next issue that falls for consideration is whether the impugned actions violated the constitutional rights of the Petitioner. There is no contest on the question that the suit property was indeed registered in the name of Shadrack Mwiti Muguna [deceased]. In any event, a copy of the certificate of title and the green card, which have been annexed to the supporting affidavit vindicate that the suit property lawfully belonged to the deceased prior to and before the offensive cancellation. 9. It is common ground that once a certificate of title is issued to and in favour of a particular person, in this case, the deceased, then the registered proprietor accrues legal rights and interests thereto. The rights and interests are protected under the constitution. [**See Article 40 [3] of the Constitution, 2010.]** 10. It is also important to highlight that the rights which have accrued to a property owner cannot be defeated without regard to the due process of the law; Fair Hearing; and observation of the Rules of Natural Justice. Instructively, no arbitrary actions can be taken, in a manner that is not sanctioned by the law. [See the holding of the Court of Appeal in the case of **Chief Land Registrar and another versus Nathan Tirop Koech and others [2018] eKLR** – at paragraph one thereof]. 11. Notwithstanding the clear position of the law, the 1st Respondent proceeded to and disregarded both the constitution and the provisions of the registered **Land Act,** **Chapter 300 Laws of Kenya [ now repealed.**]. The actions by the 1st Respondent breached and violated the proprietary rights of the Petitioner. To this end, the impugned actions violated the constitutional rights of the Petitioner and thus the Petitioner is entitled to the protection of the law. 12. The final issue that falls for consideration relates to the remedies. The Petitioner has sought various remedies before the court. The first remedy that has been sought relates to a declaration that the impugned action by /on behalf of the 1st Respondent was illegal, null and void. 13. I beg to state that the 1st Respondent had no capacity to revoke the certificate of lease. By generating and issuing the impugned gazette notice, the 1st Respondent assumed and arrogated unto himself the powers that lawfully belongs to a court of law. To this end, a declaration suffices. [See the holding of the court of appeal in the case of **Johana Nyokwoyo Buti versus Beauttah Onsomu [2010] eKLR].** 14. The other relief that has been sought relates to the quashing of the impugned gazette notice and restoration of the name of the Petitioner to the title. I have no difficulty in finding and holding that the impugned gazzette notice merits being quashed. It was issued without authority. It was ultra vires. Consequently, and without much ado, I do hereby quash the impugned gazette notice and restore the named of Shadrack Mwiti Muguna [deceased] to the register of title. 1. Next is the prayer for permanent injunction. It is imperative to highlight that the registered proprietor of a landed property [immovable property] is bestowed with statutory rights and privileges. The scope and tenor of such rights are stipulated vide **Sections 24 and 25 of the Registered Land Act, 2012 [2016].** 2. The rights that accrue to the proprietor of land, namely; right to exclusive occupation; possession; and use, cannot be appropriated if there is interference from third parties. In this case the offending third parties are the Respondents, who have threatened the rights of the Petitioner. To this end, I hold the view that the Petitioner is entitled to an order of permanent injunction [**See the decision in Moya Drift Farm Limited versus Theuri [1973] EA.** 3. I now wish to turn to the question of compensation. The Petitioner was entitled to benefit from ownership of the suit property. However, her entitlement to and rights over the suit property were curtailed by the offensive actions on behalf of the 1st Respondents. The offensive actions complained of violated the Petitioner’s rights. 4. Further, and in addition, there is no gainsaying that the offensive actions were being undertaken without due regard to the constitution and the statutory provisions which were in place. Notably, the provisions of the **Section 143 of the Registered Land Act, Chapter 300 [**now repealed] were explicit. 1. In the circumstances, I find and hold that the Petitioner is entitled to recompense. I do hereby award the sum of Kshs. 3,000,000/=only on account of general damages for violation of the Petitioner’s constitutional rights and fundamental freedoms. For the sake of completeness, I am persuaded and duly guided by the principles enunciated in the case of **Gitobu Imanyara versus the Attorney General [2016] eKLR.** 2. Regarding costs, I wish to state that costs follow the event. To this end, the person who calls forth the event, is entitled to costs, if same succeeds. On the contrary, if the person who calls forth the events fails, then same must bear the burden of costs. Nevertheless, it is not lost on me that the court retains discretions as pertains to the award of costs. [See **Section 27 of the Civil Procedure Act, chapter 21 Laws of Kenya**]. 3. However, in respect of the instant matter and taking into account the circumstances of the case, I am persuaded that the Petitioner is entitled to costs. [See the holding in the case of **Farah Awad Gullet versus CMC Motors Group Limited [2018] eKLR].** **Final orders:** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the court are: 2. **A *declaration be and is hereby issued that the decision and actions of the 1st Respondent to purportedly revoke and/or cancel the Petitioner’s registration of Plot No. L R Meru Municipality Block 1/253 vide Gazette Notice No. 3450 were illegal, unconstitutional null and void and amounted to violation of the Petitioner’s fundamental rights to property.*** 3. ***An order be and is hereby issued directing the 1st Respondent to rectify and/or reinstate the name of Shadrack Mwiti Muguna [Deceased] as the absolute proprietor of plot no. LR Meru Municipality block 1/253.*** 4. ***There be and is hereby issued an order of permanent/prohibitory injunction restraining the Respondents whether by themselves, their servants, agents and/or any person acting at their behest whomsoever from alienating, issuing any title and/or license, registering any encumbrance and/or interfering in any way with the Petitioner’s utilization and possession of the plot no. L R Meru Municipality Block 1/253*** 5. ***General damages be and is hereby awarded in the sum of Kshs. 3,000,000/= only in favour of the Petitioner.*** 6. ***The award of general damages in terms of clause [iv] above shall accrue interest at court rates [14 %] p.a from the date of the Judgment until payment in full.*** 1. ***Costs of the suit be and are hereby awarded to the Petitioner.*** 1. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 09TH DAY** **OF JUNE, 2026.** **OGUTTU MBOYA, FCIArb; CPM[MTI-EA]** **JUDGE** In the presence of: Court Assistant: Zakayo Mr. Gikunda Kiutha for the Petitioner Ms. Miranda Senior Litigation Counsel for the Respondents