[2023] KEELC 21139 (KLR)

Njoroge (Suing as the administratrix of the Estate of Peter Njoroge Kinuthia (Deceased) v Kajiado County Government & 3 others (Environment and Land Constitutional Petition 1 of 2021) [2023] KEELC 21139 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21139 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment and Land Constitutional Petition 1 of 2021

MN Gicheru, J

October 30, 2023

Between

Anne Wamani Njoroge (Suing as the administratrix of the Estate of Peter Njoroge Kinuthia (Deceased)

Petitioner

and

Kajiado County Government

1st Respondent

The District Land Registrar Kajiado

2nd Respondent

The Chief Land Registrar

3rd Respondent

The Honourable Attorney General

4th Respondent

Ruling

1. This ruling is on notice of motion dated 11/10/2022. The motion which is brought under Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, Orders 8 Rule 3 and 45 Rule 1 Civil Procedure Rules seeks the following orders –a.Review of the orders issued on 20/12/2021 only to the extent that the title to the suit property be identified as Land Reference No. 4480/201 (now known as Title No. Ngong Town Block 2/2/).b.Leave to amend the petition dated 26/4/2021 in order to reflect the new title number for the suit property.

2. The motion is supported by eight (8) grounds, an affidavit by Lawrence M. Mbaabu, advocate, dated 11/10/2022 and two annexures.In summary the applicant is saying that the plot number changed from the old number to the new number cited above.

3. When the ruling of 20/12/21 was made, the Honorable the Attorney General had not filed a response to the petition. Since then, the Attorney General filed grounds of opposition dated 25/3/2022. The grounds are as follows.Firstly, this petition does not fulfil the requirements set out in Article 165(3) of the Constitution of Kenya in that it does not clearly state the constitutional provisions that have been violated in a precise manner.Secondly, the Attorney General is of the view that the petitioner ought to have commenced this case by way of a plaint because it involves competing claims over the suit property.Thirdly, the petition is unmerited because the suit land is not subject to compulsory acquisition by the National Land Commission as envisioned under Article 40(3) of the Constitution of Kenya.Finally, the petition is speculative and the reliefs sought unenforceable because the petitioner has failed to tender evidence in form of a title document indicating that the suit property is registered in the name of Peter Njoroge Kinuthia (deceased).

4. The first Respondent has also filed a replying affidavit in the meantime through one of its officers, Jonathan Oseur. In the affidavit dated 7/11/2022, the deponent disputes that the first respondent has any interest in the suit land. According to the fist respondent, the land is private property and it has no interest in it. Alternatively, it is under the National Government so whichever way you look at it, the first Respondent is not involved in the dispute.

5. I have carefully considered the notice of motion including the affidavits, the annexures and the grounds of opposition and I find as follows.Firstly, it is very surprising to hear that the petitioner is not in occupation of the suit land. In paragraph 6 of the affidavit dated 26/4/2021 she states as follows.“That sometime in the year 2019, during one of my routine visits to the suit property, I found out that the suit property had been invaded by persons who are unknown to me, which persons had put up some developments on the suit property”.This deposition raises a serious question. If the plot was allocated to the applicant’s husband in 1973, why is it still undeveloped? Isn’t one of the conditions of allotment that the allottee must develop the property within a given period?

6. Secondly, the fact that the applicant does not know whether it is the national or county government that allocated the suit land seriously undermines her claim to it. This uncertainty on her part makes one doubt the legitimacy of her claim to the suit land as does her lack of title documents.

7. Finally, I agree with the Honourable the Attorney General that the petition is not the best way to proceed in this case because the petition as presented does not seem to meet the threshold set out in Article 165(3) (d) of the Constitution.For the above stated reasons, I dismiss the motion dated 11/10/2022 and also vacate the orders dated 20/12/2021. It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF OCTOBER, 2023. M.N. GICHERUJUDGE