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How missed deadline cost Bajuni community land case
A petitioner failed to file written submissions, which had been ordered as the method of prosecuting the case.
A petition seeking to protect the Bajuni community of Lamu from losing their ancestral land has been dismissed after the petitioner failed to comply with court directives.
The Environment and Land Court in Malindi threw out the case filed by Mohamed Mbwana, the chairperson of the Shungwaya Welfare Association, citing the petitioner’s failure to follow clear instructions.
The court said the lapse derailed the hearing and determination of the petition despite the serious issues it raised.
Justice Mwangi Njoroge ruled that the court could not ignore the petitioner’s failure to file written submissions, which had been ordered as the method of prosecuting the case.
“Where a court has ordered that a petition be disposed of by way of written submissions and no other method has been provided, that petition cannot be deemed to have been prosecuted unless the submissions are filed,” said Justice Njoroge in a judgment dated May 27.
The judge said the petitioner had been given sufficient time and clear directions but failed to act, rendering the petition inactive. “The court finds that the petition has not been diligently prosecuted. Accordingly, and in line with the warning previously issued, the petition is hereby dismissed for non-compliance with court orders,” the judge ruled.
The case had been filed against several government entities including the Principal Secretary, Ministry of Lands, the National Land Commission, the Director of Surveys, Land Settlement Board of Trustees, the Lamu Registrar of Lands and the Attorney-General.
Mr Mbwana sought orders that would have significantly benefitted the Bajuni, an indigenous community that has long complained of historical land injustices in Lamu County. Among the orders he sought was a declaration that the government’s failure to survey, demarcate and issue land title deeds to the Bajuni community, despite repeated promises, had violated their rights and legitimate expectations.
Mr Mbwana also wanted the court to acknowledge that there had been recurrent irregular land allocations in Lamu often carried out without due legal procedure. Further, the petition called for a freeze on land adjudication and settlement schemes until an independent committee comprising government representatives and local leaders was formed to investigate historical land injustices.
Mr Mbwana also sought to stop the privatisation of unalienated land in Lamu and demanded that no new settlement schemes be initiated without a land governance body appointed through a transparent and participatory process. He urged the court to recognise the user rights of community members whose lands had been gazetted as reserves, arguing that the National Land Policy requires benefit-sharing and co-management of natural resources.
“The petitioner prays for the revocation of irregular land titles, and for the court to set timelines for fresh adjudication, survey, and issuance of titles to deserving individuals,” said Mr Mbwana. He further called for the eviction of all persons who had encroached on ecologically sensitive areas.
In an affidavit filed in court, Mr Mbwana said that following independence and the Shifta and bandit conflicts, the government introduced settlement schemes in Lamu without consulting the Bajuni community. He claimed that private ranches and land were allocated irregularly to individuals and companies, but indigenous residents were excluded.
“These actions led to unresolved tensions with the local community, including a recent dispute over land earmarked for the expansion of the Lamu Port Project,” said Mr Mbwana.
He cited a 1996 order in Mombasa HCCC No. 62, which declared the entire Lamu District an adjudication area and ordered the Commissioner of Lands to maintain its status. He said efforts by the association to stop further adjudication until the Bajuni’s grievances were addressed had not been successful.
However, the respondents, represented by Senior State Counsel Gabriel Ojwang, opposed the petition, terming it fatally defective and an abuse of the court process. Mr Ojwang said the petition lacked legal merit and failed to demonstrate any constitutional violations or establish a prima facie case.
On February 3, 2025, the court directed that the case be concluded via written submissions within 28 days. Mr Mbwana’s lawyer was also instructed to file an affidavit confirming that the National Land Commission had been served. The court warned that failure to comply would lead to dismissal.
Records show that while the respondents filed their submissions on March 26, 2025, the petitioner failed to meet both conditions.
The dismissal is a setback for the Bajuni community, which had hoped that the case would resolve long-standing land injustices in the county.
