Shah v Embakasi Youth Jua Kali Self Help Group & 4 others

2. The appellant averred that the 1st respondent, Embakasi Youth Jua Kali Self Help Group, invaded, trespassed and encroached on the suit properties, a move he posited was made in collusion with and in full acquiescence of the 2nd respondent, the Ministry of Lands, Housing & Urban Development, and the 3rd respondent. The appellant stated that his attempt to build a boundary wall in order to prevent further trespass or encroachment did not succeed as he received threats from the members of the 1st respondent. He further averred that he led Milimani Chief Magistrate Case No. 544 of 2011, Manoj K. Shah vs. Embakasi Youth Jua Kali Self-Help Group and obtained an order of injunction restraining the 1st respondent from trespassing, encroaching and erecting illegal structures on his properties. However, the order and subsequent orders were never enforced by the 4th respondent, the Oce of the Inspector General of Police. The appellant also averred that he later withdrew the suit before the subordinate court for want of jurisdiction. The appellant sought to be declared the owner of the suit properties in addition to an order directing the 4th respondent to provide security during the demolition of the illegal structures erected on the suit properties. 3. In response to the appellant’s petition, the 1st respondent led a replying adavit sworn on 15th January 2019 by its Chairman, Samson Otieno Magogo. Therein, it was averred that the appellant was a vexatious litigant and had led several suits against the 1st respondent. In support of this averment, Mr. Otieno annexed the pleadings in Milimani CMCCC No. 544 of 2011 - Manoj Shah vs. Embakasi Jua Kali Self Help Group and Milimani ELC Miscellaneous Application No. 77 of 2017 - Manoj Shah vs. Embakasi Jua Kali Self Help Group. The 1st respondent challenged the appellant’s ownership of the suit properties, contending that the properties had been surrendered to the government as part of the riparian reserve of Nairobi River. He supported the deposition by exhibiting a letter dated 29th July 2010 from the 3rd respondent permitting the planting of trees on the suit properties. 4. On its part, the 3rd respondent led grounds of opposition dated 12th March 2019, to wit, that the prayers sought in the petition were unenforceable and that the appellant had failed to show any violation of the Constitution or statute by the 3rd respondent. 5. The 2nd, 4th and 5th respondents led grounds of opposition dated 25th March 2019, wherein they contended that Milimani CMCCC No. 544 of 2011 ceased to exist because it had been withdrawn by the appellant. Further, that the appellant had not established any violation of constitutional rights by them. 6. The matter was canvassed by way of written submissions and in the impugned judgment, Bor, J. found that this was in fact a dispute over ownership of land and any claim for trespass should have been agitated by way of an ordinary plaint. Specically, the learned Judge held that: 14. From the petition and submissions made, it is clear that the Petitioner seeks to protect his property against what he claims is trespass by the 1st Respondent. In the court’s view, the dispute is an ownership dispute between the Petitioner and the 1st Respondent which is more of a tort as opposed to a constitutional claim. Paragraph 11 of the Petitioner’s submissions dated 16/04/2019 conrms this position. The Petitioner submitted that it was quite clear that the dispute herein was primarily who owns the disputed property. 15. The court takes the view that the Petitioner’s claim for trespass to his property should be canvassed by way of an ordinary plaint where the parties will be aorded an opportunity to present their evidence and test the evidence presented by the other parties. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 2

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16. 7. In a constitutional petition seeking to enforce fundamental rights and freedoms, the onus to prove breach or violation of the rights lies on the Petitioner. The Petitioner has failed to demonstrate to the court how the Respondents violated his rights. In Anarita Karimi Njeru vs. Republic [1979] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the courts found that in constitutional petitions, it is not enough to cite provisions of the Constitution said to have been breached without presenting evidence of the infringement.” Dissatised with the above nding, the appellant has moved to this Court on a rst appeal and through the memorandum of appeal dated 4th February 2020, he raises four major grounds of appeal, which we shorten as follows: i. The learned Judge erred in law and fact by holding that the entire petition was largely pegged on an order given on 9th September 2011 in Milimani CMCC No. 544 of 2011 whereas the petition was fundamentally pegged on breach of the appellant’s fundamental right to property; ii. The learned Judge erred in law and fact by holding that the 4th respondent was under no obligation or duty to protect the appellant and his property upon withdrawal of Milimani CMCC No. 544 of 2011; iii. The learned Judge erred in law by holding that the appellant’s claim for trespass could only be canvassed by way of ordinary plaint; iv. The learned Judge erred in law and fact by holding that the appellant failed to prove breach or violation of his fundamental rights.” 8. When this appeal came up for hearing before us, learned counsel Mr. Wawire appeared for the appellant, learned counsel Mr. Olonde was in attendance for the 1st respondent, learned state counsel Mr. Eredi represented the 2nd, 4th and 5th respondents and learned counsel Mr. Odhiambo acted for the 3rd respondent. Counsel relied upon their written submissions accompanied by brief oral arguments. 9. In support of this appeal, learned counsel Mr. Wawire relied on the submissions dated 27th October 2020 and the supplementary submissions dated 24th April 2024. Through the main submissions, counsel argued that the learned Judge erred by holding that his petition was pegged on the orders issued in Milimani CMCCC No. 544 of 2011 asserting that the right to property is directly protected by Article 40 of the Constitution. Counsel relied on Mtana Lewa vs. Ngala Mwagandi [2015] eKLR and Chief Land Registrar & 4 Others vs. Nathan Tirop Koech & 4 Others [2018] eKLR for the proposition that the right to hold property is a constitutional right and no person can be deprived of the right except in compliance with the Constitution and statute. According to counsel, the appellant had, as held in Serah Mweru Muhu vs. Commissioner of Lands & 2 Others [2014] eKLR, produced titles showing that he is the owner of the suit properties, thus entitling him to the protection of the court. 10. Contending that the learned Judge erred in failing to nd that the 4th respondent was under a duty to protect the appellant and his properties, counsel pointed to Article 245 of the Constitution and section 51 of the National Police Service Act, and argued that police ocers are obliged to obey and execute all orders and warrants lawfully issued, and also protect life and property. Also cited in support of the submission is Florence Amuga Omukanda & Another vs. Attorney General & 2 Others [2016] eKLR. Relying on Charles Murigu Muriithi & 2 Others vs. Attorney General [2019] eKLR counsel https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 3

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submitted that the 4th respondent was liable for the violation of the appellant’s rights by failing to act despite being served with court orders. 11. Asserting that courts must uphold and vindicate any contravened constitutional right, counsel cited Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR to stress that courts are under a duty to deal with disobedience of court orders. Contending that the Constitution upholds the appellant’s right to property, counsel referred to the decision of the Supreme Court in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai Estate & 4 Others [2013] eKLR for the holding that the Kenyan Constitution has given the High Court the exclusive jurisdiction to deal with matters of violation of fundamental rights. According to counsel, the learned Judge also erred in law by failing to hold that trespass to land is a violation of the right to property and the violation can be prosecuted by a constitutional petition. Counsel additionally submitted that trespass is actionable per se and the appellant was thus entitled to compensation as his right to property had been violated. In support of the arguments, counsel relied on Judicial Service Commission vs. Gladys Boss Shollei & Another [2014] eKLR, Christine Nyanchama Oanda vs. Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR, and Stanley Munga Githunguri vs. Kenya National Highways Authority & 2 Others [2017] eKLR. 12. As to whether the appellant met the threshold for proof in constitutional petitions, counsel submitted that he had. According to counsel, as required by Anarita Karimi Njeru vs. Republic [1979] eKLR, the appellant had set out with a reasonable degree of precision his complaints, the infringed constitutional provisions and the manner in which his rights were infringed. Relying on Chief Land Registrar & 4 Others vs. Nathan Tirop Koech & 4 Others (supra), counsel submitted that a perusal of the respondents’ replies to the petition clearly showed that they understood the appellant’s claim. Asserting that the appellant had discharged the evidentiary burden of proof as required in Mbuthia Macharia vs. Annah Mutua Ndwiga & Another [2017] eKLR, counsel submitted that the appellant had produced copies of the titles to the suit properties which were never disputed by any of the respondents. 13. Finally, counsel citing Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, argued that the appellant has established a case for the award of damages. 14. In the supplementary submissions, Mr. Wawire submitted that the trial court erred in dismissing the constitutional petition on procedural grounds, namely that a dispute over land ownership should have been led through an ordinary plaint to allow the taking of oral evidence. Rejecting this holding, counsel adverted to the Supreme Court's decision in Fanikiwa Limited & 3 Others vs. Sirikwa Squatters Group & 17 Others [2025] KESC 79 (KLR) that when questions over ownership of land arise in a petition, the Environment and Land Court is obligated to direct that the matter be heard through viva voce evidence instead of dismissing it. He maintained that the position adopted by the Supreme Court is also provided for in The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Mutunga Rules”), which empowers a court to admit oral evidence and allow cross-examination in order to resolve competing claims. Also cited in support of the argument that constitutional remedies were available to the appellant is Fred Munialo Maelo vs. Mathew Wamalwa Wafula & 2 Others [2020] eKLR. According to counsel, a petitioner is entitled to pursue the legal remedy they deem most ecacious. 15. Still maintaining that the learned Judge erred in dismissing the appellant’s petition, counsel argued that the unauthorized encroachment and erection of illegal structures by the 1st respondent constituted a direct violation of his right to property which is protected under Article 40 of the Constitution. Reliance was placed on Ann Nyaboke Achachi & 2 Others vs. Abel Moranga Ongwacho & 3 Others [2020] KEELC 2313 (KLR) for the proposition that trespass on private land is unconstitutional and can be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 4

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remedied through permanent injunctions through a constitutional petition. Counsel cited Obade & 299 Others & 10 Others vs. Kirima & 60 Others [2023] KEELC 20868 (KLR) as persuasive authority to illustrate that self-help groups occupying land without proof of ownership are trespassers liable to eviction and payment of damages. Counsel asserted that the appellant, having produced certicates of lease and government correspondence conrming the encroachment, was entitled to the protection of his land from illegal occupation. He,therefore, urged the Court to allow the appeal. 16. For the 1st respondent, learned counsel Mr. Olonde, relying on the submissions dated 12th December 2025, drew this Court’s attention to Milimani CMCCC No. 544 of 2011, and submitted that the suit was a dispute about the ownership of the suit properties and that the orders the appellant asked the learned Judge to enforce arose from the suit before the subordinate court. Counsel argued that once the matter before the Magistrate’s Court was withdrawn, the orders issued therein lapsed. It was also counsel’s submission that matters relating to disputes over ownership of land cannot be ventilated by way of a constitutional petition as was attempted by the appellant. Counsel reiterated that a constitutional petition was an improper vehicle for determining complex issues of land ownership, arguing that it was only a full trial before the ELC that could allow all parties to present evidence concerning the history of the subject parcel and the legality of the processes used to acquire the title to the land. Mr. Olonde, therefore, urged us to dismiss the appeal. 17. Mr. Eredi for the 2nd, 4th and 5th respondents did not le any submissions and instead placed reliance on the submissions led in the ELC. He restated that orders based on a suit that stands withdrawn, lapse upon the withdrawal of that suit. Counsel submitted that the petition was premature since the appellant had not demonstrated that he invoked the provisions for dealing with squatters as set out in section 152(e) of the Land Act. He relied on Fanikiwa Limited & 3 Others vs. Sirikwa Squatters Group & 17 Others (supra), to bolster this argument. 18. Additionally, Mr. Eredi posited that the issue of ownership was alive at the trial court and the learned Judge was therefore justied in her conclusion. He opined that the Judge through her decision had not stied the enforcement of the appellant’s rights as he could still le a civil suit instead of pursuing the present appeal. Learned counsel asserted that while it is the duty of the police to protect the right to property, the onus of protecting the right is rst and foremost on the owner of the property. He added that the appellant has failed to demonstrate the steps he took to protect his property, and that he did not establish that any report was made to the police regarding the alleged violations. He therefore asked for the dismissal of the appeal. 19. On his part, Mr. Odhiambo for the 3rd respondent relied on the submissions dated 12th December 2025 and associated himself with the arguments of Mr. Olonde and Mr. Eredi. Primarily, counsel argued that the appellant’s petition could be narrowed down to a claim for trespass and such a claim requires viva voce evidence and thorough interrogation, which opportunity the petition did not provide. Counsel asserted that the appellant failed to meet the threshold of proving specic constitutional violations committed by the 3rd respondent, noting that injunctive orders previously issued in respect to the property were directed at the 1st respondent and not the 3rd respondent. 20. Mr. Odhiambo also invoked the principle of constitutional avoidance, citing Communications Commission of Kenya & 5 Others vs. Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR) to urge that courts should not decide constitutional issues if a case can be resolved on other grounds. Counsel also cited Gabriel Mutava, Elizabeth Kwini & Mary Martha Masyuki vs. Managing Director Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR) to submit that constitutional litigation is serious business and should not be used as a "panacea" for disputes that can be handled in other legally constituted forums. Finally, counsel invoked Kimani vs. Mugan, Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR) to urge that characterizing a trespass https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 5

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claim as a constitutional breach trivializes the Constitution, and that such claims are properly governed by statutes like the Trespass Act. Mr. Odhiambo consequently urged us to dismiss the appeal in its entirety. 21. This being a rst appeal, our duty as enshrined under rule 31(1)(a) of the Court of Appeal Rules, 2022 was explained in the case of Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows: “ This being a rst appeal, we are reminded of our primary role as a rst appellate court namely, to re- evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 22. We have addressed our minds to the record of appeal as well as submissions by counsel and appreciated the tenor and import of the same alongside the authorities relied on. In our view, two issues stand out for determination: rst, whether a court can properly hear and determine competing property rights through adavit evidence led in a constitutional petition; and second, whether orders issued in a suit that has been withdrawn are enforceable. 23. Before we address the rst issue, it is important to appreciate that there is no dispute that Milimani CMCC No. 544 of 2011 was withdrawn by the appellant upon institution of the petition. It is also not in dispute that the proprietary rights which the appellant sought to enforce in the petition that has given rise to this appeal were hinged on the orders issued in Milimani CMCC 544 of 2011. In fact, even in the memorandum of appeal, the appellant concedes that Milimani CMCC No. 544 of 2011 was withdrawn, and that his claim that the 4th respondent failed to enforce the orders is in respect of the period when the orders subsisted. 24. In respect to the rst issue as to whether a court can properly determine competing rights over ownership of land through adavits led in a constitutional petition, our answer would generally be in the negative. The Supreme Court in Fanikiwa Limited & 3 Others vs. Sirikwa Squatters Group & 17 Others (supra) elaborated on this issue thus: 77. This matter entails disputed ownership of land. In other words, there are competing claims as to the ownership of the suit parcels. Therefore, it behoves a court to make a just determination on the same, procedurally. In doing so, it has to, on the basis of the law and evidence before it, decide who the owner is and thoroughly interrogate how such ownership was conferred. In the present scenario, a trial process involving examination, cross- examination and re-examination of the witnesses is the only way of resolving the competing allegations and counter allegations. We recognize that the superior courts below relied on rule 20(1)(a) of the Mutunga Rules to hear the matter by way of adavit evidence. However, we are of the view that a court is required to make a special endeavour to unravel all the competing claims and in particular, by calling for viva voce evidence from witnesses, especially those who have sworn depositions, and cross-examination done. This is particularly important because its decision will have a far-reaching impact especially upon the party(ies) whose ownership may end up being nullied. In taking this view, we are fortied by rules 20(3), (4), and (5) of the Mutunga Rules which allow a court to admit oral evidence, examine and cross-examine parties.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 6

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25. The above decision was cited to us by all parties. In our view, the Supreme Court in that decision held that where there is a need, the court ought to call deponents of adavits to give viva voce evidence before rendering itself on a matter requiring the testing of the evidence. It is upon the parties to decide on the procedure they would wish to use in prosecuting their matter before the court. Once they opt to proceed by way of adavits and the court concludes that the deponents of the adavits ought to have been called, the parties cannot turn around and blame the court for not calling the witnesses. It must always be remembered that cases belong to the parties and it is the parties who decide how to proceed with their cases. 26. Perhaps more relevant to the issue at hand is the Supreme Court's pronouncement in Communications Commission of Kenya & 5 Others vs. Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR). Therein, the Supreme Court addressed the principle of constitutional avoidance and the boundaries within which it applies in our legal architecture as follows: “ (256) The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional CourtKentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue,that is the course which should be followed.” 257. Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)). 258. From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyrightinfringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.” 27. Our understanding of the Supreme Court is that not all disputes are to be litigated within the framework of constitutional petitions. Not all infractions of rights require resolution within the constitutional law framework. Where there are ecacious alternative legal remedies, and the infraction is governed by a specic sphere of law with a statutory framework, parties must address those infractions within the framework provided rather than journeying the constitutional petition route. It is, therefore, our view that whereas courts are allowed to invite viva voce evidence in constitutional petitions, the matters to be addressed within that framework must be those that pass the constitutional avoidance principle or test. They must be disputes reserved only for a court sitting as a constitutional court, that is, those matters that cannot be addressed through the other procedures provided by law for instituting suits. Otherwise, all claims would be commenced through constitutional petitions rendering all the statutes for institution of suits useless. 28. In the circumstances of the appeal before us, we cannot nd fault in the learned Judge’s determination that this matter was more or less a land ownership dispute between the 1st respondent and the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 7

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Indeed, the record is clear that the question before the learned Judge was one of enforcement of the orders issued by the lower court in Milimani CMCCC No. 544 of 2011 and was, therefore, not an issue that could surmount the constitutional avoidance principle. 29. This brings us to our second issue for determination, which is whether orders issued by a court are enforceable once the suit upon which the orders are grounded has been withdrawn. A similar question arose for determination in Ntarangwi Ikiara vs. Commissioner of Lands & 2 Others [2014] KECA 518 (KLR), and the Court answered it as follows: “ With due respect to the learned judge, the statement that a status quo order shall continue to subsist if a suit is discontinued is an error of law. It is trite law that when a suit is withdrawn or discontinued, any subsisting orders made in the suit collapse and come to an end with the withdrawal or discontinuation.” 30. We agree with the above holding. When a matter is withdrawn, any interim orders issued therein cease to exist, as they cannot stand without the founding suit. Consequently, any and all orders issued by the court in relation to that matter lapse or lose any legal force and cannot be enforced or continue to subsist indenitely unless the withdrawal is contingent on the saving of the orders issued therein. Interim or status quo orders issued in a matter are tied to the matter's subsistence and will not survive the termination of the proceedings. 31. To this end, we nd that the orders sought before the ELC were unavailable as the orders sought to be enforced had lapsed following the withdrawal of Milimani CMCC No. 544 of 2011. We, therefore, nd this appeal to be without merit. It is dismissed. 32. The general principle is that costs follow the event. The appellant has not established any reason for us to depart from the rule in this appeal. Therefore, the costs of the appeal are awarded to the respondents against the appellant. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. W. KARANJA .............................. JUDGE OF APPEAL F. TUIYOTT ............................. JUDGE OF APPEAL W. KORIR ............................. JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1755/eng@2026-09-25 8

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