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ELCDismissedELC Petition No. 50 of 2021

Ragen (Suing on his own capacity and on behalf of Mwembelegeza /Residents)Community & another v Anwarali and Brothers Limited & 6 others; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Environment and Land Petition 50 of 2021) [2025] KEELC 8657 (KLR)

Environment and Land Court of Kenya at Mombasa
5 December 2025
64,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~257 min to read original · ~4 min brief

The bottom line

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A Mombasa court upheld a private landowner's Mombasa title, ruling that a map marked 'SWAMP' alone cannot prove land is public wetland without official records.

What this practically means

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Executive summary

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Ainea Ragen, a resident and private investigator, petitioned on his own behalf and for the Mwembelegeza Community, alleging that Land No. 1475 Mwembelegeza Scheme in Mombasa, marked 'SWAMP' on the Registry Index Map, was constitutionally protected public land which was fraudulently alienated, filled with stones, walled and fenced with an electric fence by Anwarali and Brothers Limited with the complicity of various state agencies. He sought declarations, cancellation of the lease, demolition, restoration, demarcation and mesne profits. The 1st Respondent cross-petitioned for alternative compensation of Kshs 75,000,000 plus interest; the Petitioner cross-cross-petitioned. The 1st Respondent's chain of title ran from Settlement Fund Trustees to Andrew P. Ngirici (2012), Zaib Real Estate Limited (2012), and the 1st Respondent (2017), with a 99-year lease issued 5th September 2018 after change of user. The Land Registrar, Mercy Chepkemoi, testified the registry contained no caveats, restrictions or swamp notation. Following viva voce evidence and a site visit, the court framed seven issues. It held the Petition met the Anarita Karimi Njeru pleading threshold on its face, but the Petitioner failed to discharge the evidentiary burden of proving the parcel was designated public land — no gazette notice, statutory reservation, hydrological survey or NEMA declaration was produced, and a RIM annotation alone was insufficient. Fraud was neither particularized nor strictly proved, and the 1st Respondent was a bona fide purchaser for value; its title was valid and indefeasible. No statutory body was shown to have breached duty. The Cross-Petition for compensation failed as there was no compulsory acquisition. All three pleadings were dismissed, and, recognizing the public interest nature and absence of bad faith, each party was ordered to bear its 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 by the Petitioner meets the threshold for Constitution Petitions
  2. 2.Whether the suit property is public land (swamp/wetland) incapable of private ownership
  3. 3.Whether the 1st Respondent's title was acquired fraudulently, illegally, or unprocedurally
  4. 4.Whether the Cross-Petitioner is entitled to compensation in the alternative
  5. 5.Whether the statutory bodies (WRA, NEMA, NLC, Chief Land Registrar, County Government, etc.) failed in their constitutional and statutory duties
  6. 6.Whether the Constitution Petition, Cross-Petition and Cross-Cross Petition have any merit and, if affirmative, if the Petitioner is entitled to the reliefs sought
  7. 7.Who should bear the costs of the Petition, Cross-Petition and Cross-Cross Petition

Key legal issues

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01

Whether the suit property is public land (swamp/wetland) incapable of private ownership

Holding

Answered in the negative; the Petitioner did not discharge the evidentiary burden and the presumption of validity of the registered title remains intact.

Reasoning

The Green Card showed an unbroken chain from Settlement Fund Trustees to Andrew P. Ngirichi, Zaib Real Estate Ltd and the 1st Respondent. The Land Registrar testified there were no caveats, restrictions or swamp notations in the registry. The Petitioner relied on a RIM annotated 'SWAMP' and community assertions but produced no gazette notice, statutory reservation, hydrological survey or NEMA declaration. WRA approvals treated the land as privately held and subject to regulation, not as a designated wetland.

p. 219
02

Whether the 1st Respondent's title was acquired fraudulently, illegally or unprocedurally

Holding

No; the registration was not fraudulent, illegal or unconstitutional and the title is protected under Section 26(1) of the Land Registration Act.

Reasoning

Fraud must be particularized and strictly proved (R.G. Patel v Lalji Makanji). The Petitioner pleaded no specific particulars of fraud and tendered no proof of forgery, collusion or corrupt scheme implicating the 1st Respondent. The 1st Respondent purchased for value (Kshs 75,000,000), transfers bore valuations and stamp duty, and change of user involved the relevant authorities. The 1st Respondent qualifies as a bona fide purchaser for value per Katende v Haridar & Company Ltd.

03

Whether the statutory bodies failed in their constitutional and statutory duties

Holding

None of the statutory bodies (3rd, 4th, 5th, 6th, 7th Respondents) were shown to have acted unlawfully or in breach of mandate.

Reasoning

WRA followed due process in approving in-stream drainage works after site inspections. NEMA's EIA contradiction with other agencies raised coordination concerns but did not prove dereliction. No gazette notice or formal declaration of reservation as public land was produced, so NLC cannot be faulted. County approvals were not proved unlawful. NCA lapses were administrative. The Land Registrar's chain of title evidence stood unimpeached absent proof of collusion.

p. 231
04

Whether the Petition meets the constitutional pleading threshold

Holding

The Court found the Petition met the Anarita Karimi Njeru precision test on its face but ultimately failed for want of evidentiary support.

Reasoning

The Petition identified the provisions allegedly violated (Articles 62, 42, 69), the manner of violation, and the reliefs sought with sufficient clarity to enable the Respondents to respond. However, at the merits stage the manner of violation was not particularized with supporting evidence — no gazette notice, survey plan, statutory reservation, NEMA report, hydrological study or environmental audit was tendered, so the Petition lacked the empirical foundation necessary to establish violations.

Legal principles established

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  • For land to qualify as public land by reason of being swamp/wetland, there must be a lawful designation or reservation evidenced in official records; a map annotation alone without gazette notice, statutory reservation or expert evidence does not displace registered title.
  • Allegations of fraud in acquisition of title must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities.
  • In public interest constitutional or environmental litigation brought in good faith, courts may order each party to bear its own costs.

Court orders

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  1. 1.Judgment entered that the Petition dated 26th October 2021 is dismissed in its entirety for lacking merit
  2. 2.The Cross-Petition by the 1st Respondent dated 2nd December 2021 is dismissed for lack of merit
  3. 3.The Cross-Cross Petition by the Petitioner dated 13th February 2024 is found to lack merit and dismissed in its entirety
  4. 4.Declaration that the Petitioner has not proved that MOMBASA/MWEMBELEGEZA/1475 is public land as a swamp or wetland within Article 62(1) of the Constitution
  5. 5.Declaration that the Petitioner has not established that the 1st Respondent's title was acquired fraudulently, illegally or unprocedurally; the 1st Respondent's title is valid and protected
  6. 6.Each party shall bear its 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
Articles 22, 23, 258 of the Constitution of Kenya, 2010; Environment and Land Court Act (constitutional petition on environment and land)

Relief refused

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Declaration that Land No. 1475 Mwembelegeza Scheme is a swamp and public land

Petitioner failed to discharge evidentiary burden of proving the suit property is public land

p. 219

Declaration that the lease certificate issued to the 1st Respondent is null and void as fraudulently acquired

Fraud not pleaded with particularity nor strictly proved; 1st Respondent found to be bona fide purchaser

p. 224

Order compelling the Chief Land Registrar to cancel the lease certificate and entries

Title upheld as valid and indefeasible; no proof of illegality in the chain of registration

p. 225

Permanent injunction, demolition of perimeter wall and electric fence, excavation of fill, boundary demarcation and mesne profits

Petition found to lack merit; reliefs are drastic and require compelling evidence which was not tendered

p. 240

1st Respondent's Cross-Petition claim for compensation of Kshs. 75,000,000 plus 14% interest

No compulsory acquisition or revocation of title occurred; conditions precedent for compensation absent

p. 239

Costs

Each party shall bear its own costs of the Petition, Cross-Petition and Cross-Cross Petition, in recognition of the public interest nature of the proceedings and to encourage access to justice without fear of financial retribution.

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.

THAT Judgement be and is hereby entered to the effect that the Petition dated 26th October, 2021 is dismissed in its entirety for lacking merit.
p. 239Disposition - dismissal of the Petition
THAT the Cross – Petition by the 1 st Respondent dated 2nd December, 2021 be and is hereby dismissed for lack of merit.
p. 239Disposition - dismissal of the Cross-Petition
The Constitutional Petition, though brought in public interest, fails for want of precision, evidentiary support, and legal merit. The Petitioner is not entitled to the declaratory, injunctive, or restorative reliefs sought.
p. 240Reliefs refused
Legally speaking therefore, the suit land is legally registered in the name of the 1 st Respondent with all indefeasible rights, title and interest vested in them by law.
p. 219Indefeasibility of registered title
THAT in view of the public interest nature of the Petition and the absence of bad faith or abuse of process, this Court exercises its discretion under Section 27 of the Civil Procedure Act, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules) 2013 (The Mutunga Rules”) directs that each party shall bear its own costs.
p. 240Costs order
IT IS SO ORDERED ACCORDINGLY.
p. 240Final orders

Issues in the judgment

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minor

The judgment states the suit land has a market value of 'not less than two a sum of Kenya Shillings Hundred and Fifty Million (Kshs. 250,000,000/-)' - the words in figure conflict (150 vs 250 million).

minor

The judgment records the site visit as conducted on 24th February 2023 but describes it as 'pursuant to a Court Order made on 18th June 2025' - an internally inconsistent date.

minor

The judgment headnotes describe NCA as 'established under the National Construction Authority Act, of 2022' while the 6th Respondent's own response and the judgment elsewhere cite the National Construction Authority Act No. 41 of 2011.

minor

The judgment records the Petitioner's supplementary affidavit as 'sworn on 31st January, 2021' although the Petition itself was filed 26th October 2021 and the affidavit responded to January/February 2022 replying affidavits - an apparent date error.

material

The judgment's disposition records an earlier reference that 'the Petition meets the threshold for constitutional petitions' yet the same paragraph also dismisses the Petition for want of precision; the internal analysis states both that the Petition passes and fails the Anarita Karimi Njeru test.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ragen (Suing on his own capacity and on behalf of Mwembelegeza /Residents)Community & another v Anwarali and Brothers Limited & 6 others; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Environment and Land Petition 50 of 2021) [2025] KEELC 8657 (KLR)", Case Analysis (2025). ELC Petition No. 50 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8657/eng@2025-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.