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ELCStruck OutNot stated in judgment

Nyamongo v Diocese of Kisii (St Charles Lwanga, Kisii Central Church) & 4 others (Environment and Land Petition E001 of 2024) [2025] KEELC 8658 (KLR)

Environment and Land Court
11 December 2025
MSMunyao Sila
1,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner commenced a constitutional petition invoking Articles 22, 23, 25, 40, 64 and 165 of the Constitution, claiming ownership of land parcel Nyaribari Chache/B/B/Boburia/4475. He pleaded that title documents issued to him on 20 June 1989 remained in his custody, that he never sold or transferred the land, and that the 1st respondent took possession around 2015 alleging purchase through a chain beginning with Annah Kerubo Ocharo and Sam Nyamari Mose, strangers to the petitioner. He sought declarations of ownership, nullification of the 1st respondent's title, rectification of the register, a permanent injunction, mesne profits, general damages, costs and interest. The court, on its own motion inviting submissions on the propriety of the petition, held that the suit was nothing more than a claim for title to land. Cancellation of title is governed by Section 80 of the Land Registration Act, 2012, and disputes over ownership between private individuals fall within statutory law, not constitutional procedure. Applying the doctrine of constitutional avoidance as articulated by the Supreme Court in Communications Commission of Kenya v Royal Media Services, and the comparative authorities of S v. Mhlungu and Ashwander v. Tennessee Valley Authority, the court held that assertion of an Article 40 property right does not convert every land dispute into a constitutional petition. The issues were best determined in an ordinary suit where parties could plead, counterclaim and examine witnesses. The petition was struck out with costs to the respondents capped at Kshs. 100,000/=.

Questions the Court framed

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

  1. 1.Whether the dispute is properly a constitutional petition or an ordinary suit for title to land
  2. 2.Whether the doctrine of constitutional avoidance applies

Key legal issues

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01

Whether a land title dispute can be brought as a constitutional petition

Holding

No - it is an ordinary suit for title; the constitutional petition was struck out

Reasoning

The court examined the prayers and found none requiring analysis or declaration of any constitutional article save for the generic insertion of prayer (h) on remedies. Cancellation of title is governed by Section 80 of the Land Registration Act, 2012. Land claims asserting Article 40 property rights do not thereby become constitutional petitions; the issues are best determined in an ordinary suit with pleadings, witnesses and cross-examination.

p. 3
02

Applicability of the doctrine of constitutional avoidance

Holding

The doctrine applies; where a case can be decided on another basis, the constitutional route should not be taken

Reasoning

Relying on the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the court held that assertion of an Article 40 property right does not make every land case justiciable by petition. Since the claim could be presented by way of an ordinary suit, the petition was struck out with costs capped at Kshs. 100,000/=.

p. 4

Legal principles established

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  • Determining ownership of land between two private individuals and revoking a fraudulently acquired title is a matter of statutory law (Section 80, Land Registration Act) and does not require constitutional procedure
  • The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis

Court orders

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  1. 1.Suit struck out on the basis of the doctrine of constitutional avoidance
  2. 2.Costs to the respondents capped at Kshs. 100,000/= in the court's discretion

The bench

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

MS
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 25, 40, 64 and 165 of the Constitution (as invoked by the petitioner); suit struck out under doctrine of constitutional avoidance

Relief refused

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All prayers in the petition (declarations of ownership, nullification of title, rectification, injunction, mesne profits, general damages)

The suit is nothing more than a claim for title to land which can be presented by way of an ordinary suit; constitutional avoidance applies

p. 4

Costs as sought in the petition (capped instead)

Court exercised discretion to cap costs at Kshs. 100,000/= to the respondents

p. 4

Costs

Suit struck out with costs to the respondents, capped at Kshs. 100,000/= in the court's discretion.

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.

My take of the suit is that this is nothing more than a suit for title to the suit land.
p. 2Nature of the suit
The doctrine of constitutional avoidance applies.
p. 3Constitutional avoidance
Indeed, it is arguable that all cases touching on rights over land, or title to land, assert the right to own property under Article 40, but that does not mean that all land cases ought to be entertained as constitutional petitions.
p. 3Article 40 and constitutional petitions
Thus, on the basis of the doctrine of constitutional avoidance, this suit is hereby struck out with costs. In my discretion, I cap costs at Kshs. 100,000/= to the respondents
p. 4Final orders

Issues in the judgment

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minor

Suit is dated '11 DAY OF DECEMBER 2025', a future date; possibly a typographical error in the judgment

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, "Nyamongo v Diocese of Kisii (St Charles Lwanga, Kisii Central Church) & 4 others (Environment and Land Petition E001 of 2024) [2025] KEELC 8658 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8658/eng@2025-12-11

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