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
#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
- Jurisdiction invoked
- Articles 22, 23, 258 and 165 of the Constitution of Kenya 2010; Environment and Land Court Act No. 19 of 2011
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.