https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4791

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLPET/E011/2025 PETRO OIL KENYA LIMITED VS THE NATIONAL LAND COMMISSION AND CHIEF LAND REGISTRAR NAIROBI AND 5 OTHERS JUDGMENT PETITIONERS CASE 1. The Petitioner moved this Court by way of a Petition dated 28th May 2025, contending that it is the registered proprietor of the leasehold interest in Land Registration No. 20432/1/MN (C.R. No. 6910), measuring approximately 0.2575 hectares and situated in Nyali, Mombasa (hereinafter "the suit property") from the government of Kenya for a term of 99 years. The Petitioner avers that it acquired the suit property from Wonderpack Limited on 29th March 2017 for valuable consideration of Kenya Shillings Eighty Million (Kshs. 80,000,000). The Petitioner further states that the suit property is located adjacent to Land Registration No. 4928/1/MN, on which Nyali Primary School stands, and neighbors Land Registration No. 22547/1/MN (C.R. No. 79592), which is allegedly owned by the 7th Respondent. 2. The alleges that via a letter dated 30th April 2025 issued by the 2nd Respondent, in which it was alleged that the Petitioner's title had been irregularly issued over land reserved for the construction of a secondary school in Nyali. The Petitioner was therefore directed to surrender its title for cancellation within twenty-one (21) days. 3. The Petitioner states that earlier, there was communication from the 1st respondent, dated 14th April 2025 revealing that the intended revocation was pursuant to directions of the 1st Respondent. In that letter, the 1st Respondent referred to a complaint lodged by the 7th Respondent with the Cabinet Secretary, alleging that Land Registration No. 22547/1/MN, registered in the name of the Cabinet Secretary to the National Treasury as trustee on behalf of the 7th Respondent, had been grabbed through the issuance of illegal titles to undisclosed private individuals. The letter further noted that some of the affected persons had obtained court orders restraining the cancellation of their titles, although the particulars of the cases were not disclosed. The 2nd Respondent was then directed to recall and cancel the titles of those proprietors who had not obtained court orders. 1. According to the Petitioner, the 1st and 2nd Respondents do not possess the statutory authority under sections 76(2) and 91(b) of the Land Registration Act, or any other provision of law, to revoke their title. The Petitioner further contends that the decision to cancel its title was reached without according them a hearing. The Petitioner further points out that its parcel of land was never identified in the letter dated 14th April 2025, and therefore the directive to revoke their title was illegal as it wasn’t part of the title that were to be cancelled. 2. The Petitioner also maintains that the suit property was neither unlawfully acquired and has never been part of the 7th Respondents parcel Land Registration No. 22547/1/MN belonging to the 7th Respondent. Although the location of the parcels may create the impression that it is within the 7th Respondents property, the Petitioner insists that they are separate and distinct parcels with independent titles. 3. The Petitioner further avers that the allegation that the suit property was illegally acquired is not new. That the 2nd Respondent previously registered a restriction against the title pursuant to instructions from the 6th Respondent. Ater investigations, however, the 6th Respondent allegedly concluded that the restriction was unjustified and the restriction was accordingly discharged. 4. In the Petitioner's view, it is surprising that another complaint has resurfaced, forming the basis for cancellation of its title. According to the Petitioner, the allegation that the suit property was unlawfully grabbed from the 7th Respondent's land is devoid of legal basis. The Petitioner asserts that the decision to cancel their title is inconsistent with the findings of the 6th Respondent's earlier investigations, which had exonerated them. 5. The Petitioner therefore seeks the following Orders; 6. A declaration that Petitioner is the legal, lawful and rightful owner of the property known as Land Reference Number 20432/I/MN (CR. 69410) and the Petitioner’s said property does not belong to the 7th Respondent and is not part of the 7th Respondent’s property known as MN/1/22457. 7. An order of prohibition and/or permanent injunction restraining the Respondents herein, their agents, assigns, employees, officers or any person acting on their behalf and/or authority from cancelling and/or revoking the title of the Petitioner’s property known as Land Reference Number 20432/I/MN (CR. 69410) and/or in any other manner interfering with the Petitioner’s interest, ownership, occupation, possession and use of the Petitioner’s said property. 1. An order of prohibition and/or permanent injunction restraining the 7th Respondent herein, its agents, assigns, employees, officers or any person acting on its behalf and/or authority from alleging, complaining and claiming that the Petitioner’s property known as Land Reference Number 20432/I/MN (CR. 69410) was grabbed from, belongs to or is part of the 7th Respondent’s property known as MN/1/22457 or any other property for that matter. 2. An order of prohibition and/or permanent injunction restraining the Respondents herein, jointly and severally, their agents, assigns, employees, officers or any person acting on their behalf and/or authority from conducting any investigations and taking any steps on the basis that the Petitioner’s property known as Land Reference Number 20432/I/MN (CR. 69410) was grabbed from, belongs to or is part of the 7th Respondent’s property known as MN/1/22457 or any other property for that matter. 3. A declaration that the Cabinet Secretary to the National Treasury of Kenya, the 4th Respondent herein, has no legal mandate and authority to hold the title for MN/1/22457 as Trustee for Nyali Secondary School and/or the Mombasa Parents Club, the 7th Respondent herein and the title so held is hereby declared illegal, null and void. 4. An order of mandatory injunction compelling the 1st and 2nd Respondents to revoke and cancel the lease and title for the property known as MN/1/22457 held by the Cabinet Secretary to the National Treasury of Kenya, the 4th Respondent herein, as Trustee for Nyali Secondary School and/or the Mombasa Parents Club, the 7th Respondent herein. 5. Costs of this Petition be borne by the Respondents jointly and severally. 6. Any further Relief or Orders that this Honourable Court shall deem just and fit to grant. RESPONDENTS CASE 7. The 7th h Respondent's case is set out in the replying affidavit sworn by Tamimi Lewa, the Secretary of the Mombasa Parents Club. According to the 7th Respondent, the Mombasa Parents Club manages Nyali Primary School and Kindergarten. He states that the parcel of land originally known as L.R. No. 6542 Section I Mainland North was set aside for the construction of Nyali Secondary School, a public institution intended to serve the educational needs of Kenyan children. 8. On 1st October 1982 the Club was issued with Grant No. C.R. 19704 in respect of the land occupied by Nyali Primary School and, on the same date, received a letter of allotment for the unsurveyed plot earmarked for Nyali Secondary School, identified as Plot No. 21, Mombasa Mainland North. The Club accepted the allotment, paid the requisite premium of Kshs. 4,772, and was issued with an official receipt dated 21st December 1982. On 13th July 1990, the plot was surveyed and assigned number L.R. No. 6542 Section I Mainland North together with a corresponding deed plan. On 19th May 1995 the Ministry of Lands approved Part Development Plan No. 234, which clearly identified the existing water development area measuring 0.8 hectares and the proposed Nyali Secondary School site measuring 5.4 hectares. 9. According to the 7th Respondent, the land became a target of unlawful encroachment as early as 1987 by private developers who illegally subdivided the property. As much as the subdivisions were cancelled the struggle to safeguard the property has persisted. Over the years numerous surveys have been undertaken, titles have been repeatedly issued and cancelled and fresh parcel numbers issued with a view to dispossess the 7th Respondent of the land. He also alleges that restrictions placed over the land by the National Land Commission were at times unlawfully lifted upon instructions from persons who lacked authority over matters relating to the suit property. That includes the title held by the petitioner. 10. The deponent further states that the Club is the beneficial owner of L.R. No. 22457 Section I Mainland North, formerly known as L.R. No. 6542/1/MN, measuring approximately 5.014 hectares and that the Certificate of Title No. C.R. 79592 is held by the Cabinet Secretary to the National Treasury as trustee for Nyali Secondary School. The 7th Respondent maintains that the property has all along constituted public property reserved by the government for educational purposes. He asserts that the intended use of the land by the Petitioner is solely for private gain, contrary to the public interest for which the land was reserved. He further contends that the parcel claimed by the Petitioner, namely L.R. No. 20432/I/MN, falls within the boundaries of L.R. No. 22457/I/MN. 1. Further the 7th Respondent states that on 5th May 2022 the Principal Secretary to the National Treasury forwarded the lease documents for Nyali Secondary School to the Ministry of Lands for registration. Thereafter, on 12th May 2022, the Ministry of Lands transmitted the lease documents to the Land Registrar, Mombasa, who duly registered the lease and issued Certificate of Title No. C.R. 79592 together with the lease and an official postal search. The respondent states that the lease expressly stipulates that the land and buildings are to be used solely for educational purposes and accommodation for the school principal and architectural drawings and construction plans for the proposed secondary school have already been prepared. 2. The 7th Respondent maintains that the acquisition of L.R. No. 22457/I/MN was undertaken strictly in accordance with the law. He contends that although the Petitioner claims to have purchased part of the land from Wonderpark Limited in 2017, the said company had no valid title capable of being transferred. The 7th Respondent insists that sections 79 and 80 of the Land Registration Act empower the Registrar and the Court, respectively, to rectify the land register and cancel titles obtained through fraud or mistake. He therefore contends that the Petitioner lacks the requisite locus standi to challenge the lease issued in favour of the 7th Respondent, having failed to demonstrate any lawful interest in the property. He also argues that the Petition and the accompanying application were filed prematurely because the Registrar had not yet completed the rectification process by issuing the prescribed statutory order, nor had the Petitioner sought and been denied a hearing before the administrative process concluded. 3. Lastly, the 7th Respondent asserts that the Petitioner will not suffer irreparable harm if the relief sought is declined because, should its vendor have failed to convey a valid title, the Petitioner retains contractual remedies against Wonderpark Limited under the sale agreement. Accordingly, he urges the Court to dismiss both the Notice of Motion and the Petition with costs and, in the exercise of its powers under section 80 of the Land Registration Act, to preserve the suit property as public land reserved for educational purposes. PETITIONERS SUBMISSIONS 1. The Petitioner submits that the Grounds of Opposition dated 10th January 2026 filed by the 1st to 5th Respondents sought to reintroduce issues that had already been determined in the ruling delivered on 17th December 2025 dismissing the Preliminary Objection. Therefore, the objections were res judicata, offended the doctrine of functus officio, and amounted to an abuse of the court process. The Petitioner further submits that the 6th Respondent had not filed any response to the Petition, while the 7th Respondent's Replying Affidavit was speculative, unsupported by evidence and incapable of displacing the Petitioner's claim. 2. On the question whether the dispute could properly be determined through a constitutional petition, the Petitioner maintains that there was no genuine dispute regarding ownership of the suit property. The Petitioner submits that neither the Attorney General nor the 1st to 4th Respondents had filed any affidavit or counterclaim disputing the Petitioner's ownership, despite being the custodians of the relevant land records. The only challenge arose from the 7th Respondent's allegation that the suit property had been excised from its land. 3. The Petitioner argues that the documentary evidence, including correspondence exchanged between the 7th Respondent and the National Land Commission, did not identify the Petitioner's parcel among the properties alleged to have been unlawfully subdivided from the 7th Respondent’s land. Further, the National Land Commission, after conducting investigations, directed that the restriction placed against the Petitioner's title be lifted and development on the property be allowed, thereby confirming that no ownership dispute existed. Reliance was also placed on a survey report said to demonstrate that the Petitioner's parcel was distinct from that of the 7th Respondent. Consequently, the Petitioner urges the Court to find that the alleged ownership dispute was illusory and that the matter is properly before the Court as a constitutional petition. 4. Regarding the merits of the Petition, the Petitioner submits that they are the registered proprietor of the suit property and that its title enjoyed statutory protection unless impeached on grounds of fraud, illegality or misrepresentation, none of which had been proved by the Respondents. The Petitioner contends that the Respondents lacked any lawful basis to interfere with or revoke the Petitioner's title and that any attempt to do so was unlawful, ultra vires and void. 5. The Petitioner further argues that the Respondents' actions violates its constitutional rights under Articles 40 and 47 of the Constitution. The Petitioner submits that the decision to revoke the title was reached without according the Petitioner an opportunity to be heard and that the 1st and 2nd Respondents lacked statutory authority under the Land Registration Act to cancel the title. The Petitioner maintains that previous investigations by the National Land Commission had cleared its property and directed that the restriction registered against it be removed, making the subsequent attempts to revoke the title arbitrary, procedurally unfair and contrary to the rules of natural justice. 6. The Petitioner further contends that the Attorney General's argument that the Petition amounted to a disguised judicial review was misconceived, maintaining that Article 23(3) of the Constitution expressly empowers the Court to grant judicial review remedies in constitutional proceedings where constitutional rights are implicated. 7. In conclusion, the Petitioner submits that the Respondents had failed to establish any lawful basis for challenging its title, while the 7th Respondent's claim amounted to no more than a historical grievance unsupported by evidence. The Court was therefore urged to uphold the Petition, grant the reliefs sought and award costs to the Petitioner. 7TH RESPONDENTS SUBMISSION 1. The 7th Respondent submits that although the Petition was framed as a constitutional challenge to the intended cancellation of the Petitioner's title, it was, in substance, a land ownership dispute. The Respondent argument is that the Petition sought declarations affirming the Petitioner's ownership of the suit property and revocation of the 7th Respondent's title, which were remedies properly obtainable through an ordinary civil suit rather than a constitutional petition. According to the 7th Respondent constitutional jurisdiction should not be invoked where adequate statutory remedies exist under the doctrine of Judicial Avoi0dance. 2. The 7th Respondent further submits that ownership of the suit property was disputed, maintaining that the Petitioner's parcel formed part of the 7th Respondent’s land and that the title held by the Petitioner had been acquired unlawfully. It was argued that the Petitioner's own prayers demonstrated the existence of an ownership dispute, which could only be resolved after a full trial involving examination of the root of title and oral evidence. 3. On the legality of the impugned decision, the 7th Respondent submits that Sections 79 and 79(3A) of the Land Registration Act empower the Land Registrar to rectify the register where entries have been procured through fraud or error, while affording affected parties an avenue to challenge such decisions before the Court. Therefore, the Petition is premature since the Petitioner had an adequate statutory remedy under the Land Registration Act. 4. Regarding the reliefs sought, the 7th Respondent argues that declarations sought could not issue in constitutional proceedings and that the Petitioner had failed to establish any legal basis for revocation of the 7th Respondent's title. It was further submitted that the Cabinet Secretary for the National Treasury lawfully held the suit property in trust for the 7th Respondent in accordance with the Public Finance Management Act and the relevant National Treasury Circular. The Court was therefore urged to dismiss the Petition with costs, on the ground that the dispute ought to be pursued through the ordinary civil process rather than by way of a constitutional petition. ANALYSIS AND DETERMINATION 1. I have considered the petition together with the replying affidavits and the detailed submissions of all parties. The court finds that the Petitioner has satisfied the prerequisite for a constitutional petition as the issues raised are connected to Articles 47 (1) 40 (2) and 50 (1) of the Constitution of Kenya 2010. By revoking the Petitioners title without first according them a chance to be heard raises a constitutional concern that ought to be resolved by this court. 2. The principle for a constitutional Petition were set in out in the case of Anarita Karimi Njeru -vrs- The Republic (1979) eKLR where the court stated;We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. 3. This court finds that the petitioner herein has stated with precision the provisions of the constitution of Kenya 2010 that have been violated and moreover, the types of violation such as the revocation of the petitioner title without affording him a hearing which was in breach of Article 40 and 60 of the constitution that provides: 40.Protection of right to property and article 60 of the constitution which states that land shall be held, used and managed in accordance with the principle of security of land rights. 4. In essence, not only does the constitution confers right of ownership of land but also, the land rights have to be secured and administered in a manner that is transparent pursuant to article 60(1)(d) of the constitution of Kenya, 2010. 5. In Evelyn College of Design Ltd v Director of Children’s Department & another [2013] eKLR, Justice Majanja observed:-.“While I agree that the Commissioner has no right to alienate land which has been reserved for public purpose, the process of such a determination must be through a process recognised by the law. Likewise, if the land has been illegally acquired, then the State must use due process to recover it. The requirement of due process is underpinned by several provisions of the Constitution. First, it is implicit in Article 40(2)(a) which prohibits the legislature from passing legislation that arbitrarily deprives a person of any interest in or right over any property of any description. Second, Article 40(6) is clear that rights acquired under this Article do not extend to any property that is found to have been unlawfully acquired. Such “finding” cannot be by any other means other than due process. Third, Article 47(1) guarantees every person fair administrative action which includes due process.” 6. This position was equally echoed in the case of Adan Abdirahani Hassan and 2 Others v The Registrar of Titles and Others Nairobi Petition No. 7 of 2012 [2013] eKLR that; “Even if the Respondents held the view that the Petitioners had no right to own the suit property because the property was reserved for a public purpose, which view they were entitled to hold being the custodians of public land, the Petitioners had legitimate expectation in the proprietorship of the property and they should have been accorded a hearing before any administrative action could be taken in respect of the suit property.” 7. Therefore, even where property is said to be illegally acquired; it cannot be dispossessed without due process. Such dispossession cannot be effected by preventing the Petitioner from enjoying the incidents of ownership of the land. Since the issue in this case concerns due process, 8. The action taken by the 2nd respondent was also breach of Article 47 (1) of the constitution that provides: (1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 9. Article 47 of the Constitution of Kenya 2010 has constitutionalized the right to be given written reasons for administrative actions and decisions. The same has been set out in Sections 4 and 6 of the Fair Administrative Action Act 2015. The court finds that the entry of revocation of title was marred with procedural impropriety contrary to article 10 and 47 of the constitution of Kenya. 10. The Court of Appeal in Judicial Service Commission vs. Mbalu Mutava & Another held that:-“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.” 11. Moreover, the act of the respondents by making a determination without hearing the petitioner was in breach of the right to fair hearing under Article 50 (1) of the constitution that provides:-(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 12. In sum, the Petitioner has satisfied this court that their constitutional rights were breached, in particular, the right to fair administrative action and the right to be heard before the title was revoked. However, this does not amount to the determination that the Petitioner is the lawful proprietor of the suit Property. 13. This court therefore issues an order quashing the decision of the 2nd Respondent to revoke a title in the names of Petitioner herein. Costs of the Petition to the Petitioner SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-24 10:41:12