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ELCDismissedConstitutional Petition dated 2nd November 2023 (Homa Bay)

Anindo v Land Administration Office Homa Bay & 3 others (Petition E003 of 2023) [2024] KEELC 171 (KLR)

Environment and Land Court of Kenya
24 January 2024
1,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, administrator of the estate of Sener Anindo, sued by petition dated 2nd November 2023 on his own behalf and that of the general public. Relying on a certificate of confirmation of grant in Homa Bay CMC Succession Cause No. E042 of 2023, he had obtained registration of a transfer by transmission over Kanyada/Kotieno/Katuma/1010 and presented a mutation form for partitioning, which the 2nd respondent refused to register absent Land Control Board consent. He sought orders permitting registration, a declaration that Land Control Board consents were illegal, null and void, and an order barring the 2nd and 3rd respondents from demanding such consents, contending that the Land Control Act's provisions creating boards were unconstitutionally misaligned. The respondents were served, entered no appearance, and filed no response. The court framed three issues: whether the petition met the constitutional petition threshold; whether Land Control Boards under the LCA are illegal; and whether the petitioner was entitled to the orders sought. Applying Anarita Karimi Njeru and Mumo Matemu, the court found the petitioner pleaded no constitutional article with precision, so no constitutional issue arose. Applying the presumption of constitutionality (Ndyanabo, citing Pearlberg v Varty), it held the boards remained operative, with at most a need for minor re-titling under the Sixth Schedule, and noted the petitioner had not invoked section 8 of the LCA. The petition was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition meets the threshold of a constitutional petition
  2. 2.Whether the Land Control Boards in the LCA are illegal, null and void
  3. 3.Whether the petitioner is entitled to the orders sought in the petition

Key legal issues

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01

Whether the petition met the constitutional petition threshold

Holding

It did not, because no article of the Constitution was pleaded as infringed

Reasoning

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.

p. 3
02

Whether the Land Control Boards under the LCA are illegal, null and void

Holding

They are not; the LCA is presumed constitutional and remained operative

Reasoning

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.

p. 4
03

Whether the petitioner was entitled to the orders sought

Holding

No; the petitioner did not discharge the burden of establishing a prima facie case

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 4

Order suspending Land Control Board consents as illegal, null and void

Statutes are presumed constitutional; no breach of the Constitution was proved

p. 4

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

p. 3

Costs

Each party to bear own costs

Quotable passages

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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.
p. 4Threshold of a constitutional petition
A fortiori, the petition is devoid of merit and the same is hereby dismissed with each party to bear own costs.
p. 4Final orders - dismissal and costs
It is so ordered.
p. 4Final orders - closing disposition
there is no disclosure and proof of breach of any provisions of the Constitution in the obtaining circumstances.
p. 4Constitutionality of Land Control Boards
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
p. 3Pleading standard - Anarita Karimi Njeru

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.