Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society) on Behalf of 2500 Society Members Squatters And Evicteees From Makala Farm LR No 1748) v National Land Commission & 4 others (Environment and Land Constitutional Petition E004 of 2021) [2025] KEELC 6683 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a community's claim to 5,000 acres, confirming that registered titles stand unless fraud is proved and that native title doctrine does not apply in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine a claim for historical land injustice
- 2.Whether the Petitioners are entitled to the orders sought in the Petition
- 3.Whether the instant Petition is sub judice to Makueni ELC Case No. 8 of 2020
Key legal issues
#Jurisdiction over historical land injustice claims
The court has jurisdiction notwithstanding the NLC's statutory mandate
Relying on Chief Land Registrar v Nathan Tirop Koech, Kipsiwo Community and Kenya National Chamber of Commerce v Del Monte, the court held that neither the Constitution nor the NLC Act ousts the court's jurisdiction; Section 15(3)(b) of the NLC Act contemplates claims capable of being addressed through the ordinary court system.
Native title and indigenous customary ownership
The claim failed; the doctrine of native title does not apply in Kenya and no genealogical or documentary evidence of ancestry or dispossession was produced
The court adopted Henry Wambega's reasoning distinguishing Kenya from Australia, noted the uniform and similar witness statements without proof of which village witnesses lived in, the absence of a genealogical tree, and failure during the locus visit to prove ancestral graves; community land under Article 63(2) was also not established.
Indefeasibility of the 5th Respondent's title
The title, derived from the 1947/1948 Crown Lands Ordinance grant and transferred under the Registration of Titles Act, is indefeasible
Sections 24, 25 and 26 of the Land Registration Act confer absolute ownership subject only to challenge for fraud, misrepresentation or corrupt acquisition; Section 15(2) of the NLC Act, enacted after the RTA, does not override RTA indefeasibility. No fraud was proved.
Alleged violation of constitutional rights
The Petitioners failed to satisfy the Anarita Karimi Njeru precision threshold and produced no evidence of violations
Citing Anarita Karimi Njeru, Mumo Matemu and Communications Commission of Kenya v Royal Media Services, the court required a clear link between the aggrieved party, the constitutional provisions and the manifestation of infringement; no such evidence was adduced for Articles 26, 28, 29, 39, 40, 43 and 48.
Whether the Petition is sub judice to Makueni ELC No. 8 of 2020
The sub judice plea failed because the 5th Respondent did not demonstrate the Petitioners were parties or privies in the other suit
Section 6 of the Civil Procedure Act requires the same parties or parties under whom they claim litigating under the same title; the 5th Respondent did not show the Petitioners were parties to Mary Waeni Mutuse v Stanley & Sons Ltd.
Whether the NLC acknowledged the Petitioners' historical injustice claim
The claim lodged with the NLC was by Kiamuka Society, not the Petitioners, so the Petitioners' assertion that the NLC validated their claim was unfounded
The record showed the 28th August 2018 claim was submitted by Kiamuka Society; the Petitioners produced no evidence that they themselves lodged a claim with the NLC, undermining their reliance on the NLC's response.
Legal principles established
#- The ELC has jurisdiction to hear and determine historical land injustice claims whether or not the NLC is seized of the matter
- The Australian doctrine of native title is not applicable in Kenya
- An indereeasible registered title under the RTA/Land Registration Act prevails over historical injustice claims absent proof of fraud or misrepresentation
- A constitutional petitioner must plead with precision the right infringed, the violator, and the manner of infringement
Court orders
#- 1.The Petition is dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(3) of the Constitution and Article 67(2)(e) read with Section 15 of the National Land Commission Act (jurisdiction over historical land injustice claims)
Relief refused
#Declaration that the Petitioners' rights to housing, water, sanitation, food and health were violated
The Petitioners did not show how the Respondents violated these rights
Declaration that the Petitioners own L.R. No. 1748 Kiima Kiu by virtue of indigenous customary law and native title
The native title doctrine was held inapplicable in Kenya and no genealogical or other evidence of ancestry/occupation was proved
Cancellation of the title issued to Robin Woodcraft Stanley and issuance of title to the Trustees of Mamukii Society
The 5th Respondent's title is indefeasible and no fraud or misrepresentation was proved
Declaration of violation of Articles 25, 26, 28, 29, 39, 40, 43 and 47 of the Constitution
Claims were vague and lacked evidence under the Anarita Karimi Njeru standard
Costs
Each party to bear its 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.
In the end, I find that the Petition is devoid of merit and the same is hereby dismissed. Each party to bear its own costs
Based on the foregoing, I find that this court has jurisdiction to hear and determine claims based on historical land injustice, such as the one before the court.
I fully agree with the case cited above. The doctrine is not applicable in Kenya as the native inhabitants are the majority.
The PEtitioners did not present any evidence to demonstrate that the title was obtained fraudulently to enable this court to revoke it. As a result, the 5th Respondent's title remains indefeasible.
Based on the foregoing, I find that the Petitioners have not demonstrated their historical connection to the subject property.
the claim must be clear, the violation must be identifiable, and the Respondent must be identified as the violator.
Issues in the judgment
#The case number of this Petition is not stated anywhere in the judgment; only the date of the Petition (26th April 2021) is given
The 5th Respondent's sub judice plea is inconsistently referenced as ELC Case No. 8 of 2020, ELC No. 8 of 2018 and Makueni ELC Petition No. 5 of 2018 in different passages
Purchase price is inconsistently stated as Kshs.37,860 in the 5th Respondent's evidence and Kshs 37,850 in the court's analysis
The 1st Respondent's replying affidavit refers to a preliminary inquiry scheduled for 13th November 2013, which appears to be a typographical error given the 2018 complaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society) on Behalf of 2500 Society Members Squatters And Evicteees From Makala Farm LR No 1748) v National Land Commission & 4 others (Environment and Land Constitutional Petition E004 of 2021) [2025] KEELC 6683 (KLR)", Case Analysis (2025). Petition dated 26th April 2021 (Makueni ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6683/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.