National Land Commission v Kamau & another (Constitutional Petition E076 of 2025) [2026] KEELC 3396 (KLR)
The bottom line
#Kenya's land court ruled that people occupying land the State claims must be heard before it can be declared public property.
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 Petitioner/Respondent's replying affidavit is competent?
- 2.Whether the Applicants should be joined into these proceedings?
- 3.Whether this matter should be consolidated with ELC OS E065 of 2025?
Key legal issues
#Competence of the replying affidavit
The affidavit was competent; no evidence of want of authority was placed before the court.
While an affidavit for a juristic entity must be sworn by an authorised person, the law no longer requires a formal resolution in every instance. Arthi Highway Developers establishes that authority is presumed unless the contrary is demonstrated. The 2nd Applicant merely asserted lack of authority without any supporting material, so the court could not speculate and declined to strike out the affidavit.
Joinder of the Applicants
The Applicants were joined as Respondents; they showed a direct, identifiable and proximate interest and no personal service on them was proved.
Rule 5 of the Mutunga Rules permits joinder of any person whose presence is necessary. No evidence showed the Applicants were personally served or that Akwuyanga was authorised to receive documents for them, so they lacked actual notice and moved promptly upon learning of the Petition. Escheat requires inquiry into heirs and occupiers, so persons claiming occupation must be heard; fraud allegations go to the merits, not to whether they should be heard.
Consolidation with ELC (OS) No. E065 of 2025
The Petition was consolidated with ELC (OS) No. E065 of 2025, with the Petition as lead file.
Both suits concern L.R. No. 2327/72 and the proprietorship of that land is the central controversy, albeit under different legal principles (escheat versus adverse possession). Common questions of fact and law arise, and separate proceedings risk inconsistent findings. No prejudice would be occasioned; consolidation promotes efficiency, avoids duplication of evidence, and allows distinct legal principles to be handled in a consolidated judgment.
Legal principles established
#- An affidavit on behalf of a juristic entity must be sworn by an authorised person, but a formal board resolution need not be exhibited in every instance; authority is presumed unless the contrary is shown.
- Escheat under Article 62(1)(e) cannot be determined in a factual vacuum; persons claiming occupation of or interest in the property must be heard.
- Joinder under Order 1 Rule 10(2) can be exercised at any stage of pending proceedings, even after judgment where damages are yet to be assessed.
- Consolidation is ordered where there are common questions of law or fact and no injustice would be occasioned.
Court orders
#- 1.The Applicants are hereby joined to the Petition as the 1st and 2nd Respondents respectively.
- 2.The Petition is consolidated with ELC (OS) No. E065 of 2025, with Constitutional Petition No. E076 of 2025 as the lead file.
- 3.Costs shall abide the outcome of the two suits.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution; Civil Procedure Act Sections 1A, 1B, 3A, 3B and Order 51 Rules 1 and 2 of the Civil Procedure Rules; Mutunga Rules Rule 5
- Consolidated with
- ELC (OS) No. E065 of 2025
Relief refused
#Striking out of the replying affidavit sworn by Ali Ibrahim
The Applicants produced no material demonstrating that the deponent lacked authority; the presumption is that an officer swearing an affidavit on behalf of an entity does so with authority unless the contrary is shown.
Costs
Costs shall abide the outcome of the two suits.
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.
The Applicants are hereby joined to the Petition as the 1st and 2nd Respondents respectively.
The Petition is hereby consolidated with ELC (OS) No. E065 of 2025. Constitutional Petition No. E076 of 2025 shall be the lead file.
Costs shall abide the outcome of the two suits.
The question whether the property has escheated to the State cannot be determined in a factual vacuum.
The presumption is that an officer swearing an affidavit on behalf of an entity does so with the requisite authority unless the contrary is demonstrated.
Once they became aware of the Petition, they moved the court with reasonable promptitude.
Issues in the judgment
#The judgment is internally inconsistent about when ELC (OS) No. E065 of 2025 was filed relative to the Petition; the Respondent deponed it was filed 30th September 2025 (after service of the Petition) while the 2nd Applicant asserted it predated the Petition, and the court did not resolve the point.
The Respondent's replying affidavit is dated 21st April, 2026, yet the Respondent's submissions on the same application are also recorded as filed on 21st April, 2026, and the application was filed 13th February 2026; the chronology is at least unusual though not impossible.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Land Commission v Kamau & another (Constitutional Petition E076 of 2025) [2026] KEELC 3396 (KLR)", Case Analysis (2026). ELCC Petition No. E076 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3396/eng@2026-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.