Anindo v Land Administration Office Homa Bay & 3 others (Petition E003 of 2023) [2024] KEELC 171 (KLR)
The bottom line
#The Environment and Land Court in Homa Bay dismissed a bid to declare Land Control Board consents unconstitutional, confirming that Kenyan statutes remain valid unless proven otherwise.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition meets the threshold of a constitutional petition
- 2.Whether the Land Control Boards in the LCA are illegal, null and void
- 3.Whether the petitioner is entitled to the orders sought in the petition
Key legal issues
#Whether the petition met the constitutional petition threshold
It did not, because no article of the Constitution was pleaded as infringed
Applying Anarita Karimi Njeru and Mumo Matemu, the court held that a petitioner must identify with reasonable precision the constitutional articles violated and the manner of violation. The petitioner pleaded only that the respondents relied on 'obsolete provisions' of the LCA without citing any article, so no constitutional issue was raised.
Whether the Land Control Boards under the LCA are illegal, null and void
They are not; the LCA is presumed constitutional and remained operative
The court applied the presumption of constitutionality (Ndyanabo, citing Pearlberg v Varty) and noted that under the Sixth Schedule Part 4 No. 17 the national government restructured the provincial administration to accord with devolution. Boards may require minor re-titling, but no breach of the Constitution was proved.
Whether the petitioner was entitled to the orders sought
No; the petitioner did not discharge the burden of establishing a prima facie case
Following Lyomoki v Attorney-General, the onus in constitutional petitions is on the petitioner to establish a prima facie case before the burden shifts to respondents. The petitioner had not even shown he invoked section 8 of the LCA, and the Land Control Act serves legitimate public-policy purposes in regulating agricultural land transactions.
Legal principles established
#- A party to a constitutional petition must plead with reasonable precision the articles of the Constitution allegedly infringed and the manner of infringement
- All legislation is presumed constitutional until the contrary is proved
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitutional petition under the Constitution of Kenya, 2010 (specific articles not invoked by the petitioner); court seized of a first-instance constitutional petition challenging the Land Control Act
Relief refused
#Interim orders of preservation allowing presentation and registration of the Petitioner's documents in compliance with Homa Bay CMC Succession Cause No. E042 of 2023
The petition failed to plead any constitutional article with precision and did not discharge the onus of establishing a prima facie case
Order suspending Land Control Board consents as illegal, null and void
Statutes are presumed constitutional; no breach of the Constitution was proved
Order restraining the 2nd and 3rd respondents from demanding Land Control Board consents
The petitioner never invoked Section 8 of the LCA and no constitutional violation was established
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore, the finding of this court that the petition does not meet the requisite threshold.
A fortiori, the petition is devoid of merit and the same is hereby dismissed with each party to bear own costs.
It is so ordered.
there is no disclosure and proof of breach of any provisions of the Constitution in the obtaining circumstances.
It is trite law that in a Constitutional Petition, a party must state with reasonable precision, the Articles of the Constitution of Kenya, 2010 (The Constitution herein) that have been allegedly infringed and the manner in which the same have been infringed
Issues in the judgment
#The court cites Willy Kimutai Kitilit for the proposition that lack of LCB consent does not preclude equitable relief (constructive trust), which sits in tension with the court's ultimate dismissal of a petitioner blocked for want of such consent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anindo v Land Administration Office Homa Bay & 3 others (Petition E003 of 2023) [2024] KEELC 171 (KLR)", Case Analysis (2024). Constitutional Petition dated 2nd November 2023 (Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/171/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.