Saleh & 2 others v National Land Commission & 3 others; Bayusuf & 4 others (Interested Parties) (Constitutional Petition 44 of 2020) [2025] KEELC 3401 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a 2020 petition claiming a Mombasa plot was public land, ruling the neighbours provided no proof and sued far too late.
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 Constitutional Petition meets the threshold for constitutional petitions
- 2.Whether the Constitutional Petition has any merit and, if affirmative, whether the Petitioners are entitled to the reliefs sought
- 3.Who will bear the cost of the Petition
Key legal issues
#Whether the suit property Mombasa/Block XVII/1399 was public land reserved as a public access lane
The court found no empirical evidence that the property was public land; the parcel was surveyed and allocated to Adhan Isaak and purchased by the 1st Interested Party as a bona fide purchaser for value, and was not created through the statutory procedure for a road of access or communal right of way
The court examined Section 6 of the Land Act and Article 62 of the Constitution, then the Public Roads and Roads of Access Act and Section 143 of the Land Act for creation of rights of way. It held that the land was not created through resurvey, subdivision and parcellation as required, so no public access lane existed. The government surveyor's affidavit and KURA's affidavit confirmed the parcel was not on a road reserve. The Ndungu Report reference related to a different plot (Block 19/315 at Miritini).
Whether the 4th Respondent acted unlawfully in issuing the licence and approvals
The 4th Respondent acted within its legal mandate in issuing approvals and the Certificate of Lease over the suit property
Given the finding that the land was not a public access lane or road reserve, and that the 1st Interested Party held a registered leasehold interest acquired from the original allottee, the County Government's issuance of development approvals did not alienate public land. The site visit also confirmed the Petitioners had access to their property through other fronts, undermining the claim of denied access.
Whether the certiorari and mandamus prayers were competent
Prayers 8 and 9 were statute-barred; the six-month limitation under Section 9(3) of the Law Reform Act and Order 53 Rule 2 could not be extended
The decision complained of was made in 1995 and the Petition filed in 2020. Limitation periods are substantive, not procedural, so Article 159(2)(d) cannot cure the delay. The court also distinguished a constitutional petition from a judicial review application, holding that prerogative orders even under Article 47 must comply with statutory timelines in the Law Reform Act and the Fair Administrative Action Act framework.
Whether the Petitioners proved violations of their constitutional rights (public participation, fair administrative action, clean environment, access to information)
Although the court noted no evidence of a public participation meeting, the Petitioners otherwise failed to prove their case to the required standard
The court applied the Anarita Karimi Njeru precision standard and the burden of proof under Section 107 of the Evidence Act. On fair administrative action, the Petitioners adduced no empirical evidence of lack of access; the site visit showed wide access to their property. Environmental and EMCA complaints were barred by the exhaustion doctrine, and access to information claims were held to lie under the Access to Information Act before the High Court.
Whether the Petition met the constitutional petition threshold
The court found that the Petitioners met the threshold of reasonable precision in pleadings under Anarita Karimi Njeru
The court set out the constitutional framework (Articles 2, 259, 23) and the pleading standard requiring constitutional violations to be pleaded with reasonable precision. It held the Petitioners had complied in pleading the alleged violations, though the Petition ultimately failed on proof and limitation grounds.
Legal principles established
#- A party asserting the existence of facts bears the burden of proving them; constitutional petitions are bound by the precision standard in Anarita Karimi Njeru
- The six-month limitation period for certiorari under Section 9(3) of the Law Reform Act cannot be extended, and constitutional petitions are distinct from judicial review applications
- A parcel of land cannot be treated as a public access lane or road of access unless the statutory procedure under the Public Roads and Roads of Access Act was followed
- Complaints under the Environmental Management and Co-ordination Act must first be exhausted before the National Environment Tribunal or Complaints Committee
Court orders
#- 1.Judgment entered in favour of the 4th Respondent, 1st and 5th Interested Party and the Petition dated 8th December 2020 dismissed entirely with costs
- 2.The Petitioners declared to have failed to prove their claim as per the Petition and the same dismissed with costs to the 4th Respondent, 1st and 5th Interested Party
- 3.All status quo and interim orders issued pending the hearing and determination of the Petition vacated
- 4.Costs of the Petition made out to the 4th Respondent, 1st and 5th Interested Party, to be paid by the Petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 258 and 165 of the Constitution of Kenya 2010; Environment and Land Court Act No. 19 of 2011
Relief refused
#Declarations that the 4th Respondent abused its office and violated the Petitioners' rights in alienating Mombasa/Block XVII/1399
No empirical evidence that the suit property was public land; the 1st Interested Party proved he was a bona fide purchaser for value
Injunctions restraining leasing, licensing, development or blocking of access
Petitioners failed to prove violation of rights or denial of access; site visit showed the Petitioners had access to their property
Order of certiorari to quash the decision of the 4th Respondent
Statutorily time-barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2; brought 25 years after the decision
Order of mandamus compelling cancellation of the licence and lease
Same limitation bar; no extension of time is possible for a statutory limitation period
Claims founded on the right to a clean environment, EIA and public participation under EMCA
Doctrine of exhaustion - the proper forum was the National Environment Tribunal under Section 125 of EMCA
Costs
Costs of the Petition made out to the 4th Respondent, 1st and 5th Interested Party, to be paid by the Petitioners (dismissed with 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.
That Judgement be and is hereby entered in favour of the 4th Respondent, 1st and 5th Interested Party and dismiss the Petition dated 8th December, 2020 entirely with costs.
That all status quo and interim orders issued herein pending the hearing and determination of this Petition are hereby vacated.
there was no empirical evidence demonstrated before the Court that the suit owned by the 1st Interested Party was public land as per the clear definitions stated out here
I discern that by issuing the 1st Interested Party with the approvals and the Certificate of Lease to the suit property as per the provision of Article 40 of the Constitution of Kenya, 2010 to undertake the construction, the 4th Respondent acted within its legal mandate.
prayers 8 and 9 of the Petition fail not only because they were statute bound in terms of time but also by virtue of the fact that in as much as that this was a Constitutional Petition it is quite diferent from a Judicial Review Application.
I have seen no law, which can entitle me to enlarge time for the filing of an application for certiorari outside the 6 month limitation period.
In my view, they are part of substantive and not procedural law, and cannot fall within the ambit of Article 159(2)(d) of the Constitution.
That the costs of this Petition dated 8th December, 2020 will be made out to the 4th Respondent, 1st and the 5th Interested Party to be paid by the Petitioners.
Issues in the judgment
#The judgment header describes the Petition as dated 8th December 2020 without a stated petition number, but the site visit report embedded in the judgment refers to 'Constitution Petition No. 44 of 2020'
The judgment inconsistently attributes the Government Surveyor's affidavit - the 4th Respondent's submissions describe the Teddy Mulusa affidavit as supporting the 2nd and 3rd Respondents, while the body of the judgment elsewhere refers to 'the afidavit sworn by the 4th Interested Party being the statutory body mandated to deal on Urban - Rural roads'
The party listing at the start of the judgment describes five Respondents including the Ethics and Anti-Corruption Commission, but EACC also appears among the Interested Parties, and the disposition awards costs only to the 4th Respondent, 1st and 5th Interested Parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saleh & 2 others v National Land Commission & 3 others; Bayusuf & 4 others (Interested Parties) (Constitutional Petition 44 of 2020) [2025] KEELC 3401 (KLR)", Case Analysis (2025). Constitutional Petition dated 8th December 2020 (referred to in the site visit report as Petition No. 44 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3401/eng@2025-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.