GAZETTE NOTICE NO. 142

under the category of un-alienated government land, the same having been alienated and so registered to the government on December 16, 1993. 3. The suit land was not available for alienation to private use as the same had been reserved for public utility. The land could not revert back to the 3 rd defendant. 4. The letter from the Ministry of Land that stated that a title deed had not been issued for plot no. 2250/17 and that the plot was unclaimed did not indicate under which law the 3 rd defendant was given a go ahead to commence the titling process. There was no evidence tendered by the st and the 2 nd defendants to demonstrate how the process culminating in the issuance of title to them was conducted. 5. There was no evidence of the suit land reverting back to the 3 rd defendant or to his allegedly donee of a Power of Attorney. The issuance of a title to the 1 st and 2 nd defendants was unlawful, illegal and un-procedural. 6. The Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land was the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person was proved to be a party or where the certificate of title had been acquired illegally, un- procedurally or through a corrupt scheme. Article 40(6) of the Constitution stipulated that the rights under Article 40 did not extend to any property that had been found to have been unlawfully acquired. Suit allowed. b. NOTABLE CASES FROM SUBORDINATE COURTS i. Magistrates’ Courts As the first point of contact for most Kenyans seeking justice, the Magistrates’ Courts continued to make significant contributions to enhance access to justice. In the reporting year, the courts rendered noteworthy decisions on emerging issues such as the protection of children born through surrogacy and the criminalisation of wildlife trafficking, including the legal recognition of non-traditional species under the Wildlife Conservation and Management Act. State's Duty to Protect Children Born Out of Surrogacy Arrangements by Providing a Legal Framework to Govern Such Arrangements In re KMM (Minor) (Children's Case E239 of 2024) [2024] KEMC 80 (KLR) Brief facts It was the applicants’ case that they were the commissioning parents of the minor and that the surrogate mother had granted consent for transfer of parental rights. The applicants sought for the following orders: parental rights, legal and actual custody of the minor, and liberty to leave the jurisdiction. Issues i. Whether the State had a duty to provide a legal framework governing surrogacy to protect the rights of children born through such arrangements. ii. Whether children born through surrogacy arrangements were entitled to equal rights and protections under the Constitution and the Children Act. Holding a. Article 53(1)(e) of the Constitution provided that every child had the right to parental care and protection, which included equal responsibility of the mother and father to provide for the child, whether they were married to each other or not. The Children Act interpreted "parent" to mean the mother or father or any person who was conferred parental rights by law. There was no law in Kenya to support surrogacy. b. Even where there was no legal regime, the court or any persons dealing with the matter must, in accordance with Article 53 of the Constitution, decide the matter on the basis of the best interests of the child. A child born out of a surrogacy arrangement was no different from any other child. 21st November, 2025 THE KENYA GAZETTE Under Article 53 of the Constitution and section 11 of the Children Act every child had the right to certainty of their parentage, a right to family, a right to a name acquired through issuance of a birth certificate, a right to access health services and a right not to subjected to discrimination of any form arising from their surrogate birth. c. Surrogacy was not a hypothetical issue any more. It was real and many Kenyans were resorting to surrogacy especially those who could not for medical reasons have their own children. In such circumstances, it was the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements. In absence of legislation, the court reverted to Article 53 of the Constitution (paramountcy principle). Application allowed. The Criminalisation of Trafficking of Wildlife Species and the Legal Recognition of Ants as Protected Wildlife Under The Wildlife Conservation and Management Act Republic v Duh Hung Nguyen & Dennis Nganga, JKIA Law Courts Criminal Case No. E074 of 2025 Brief facts The two accused persons - a Vietnamese national, and a Kenyan—were arrested at Jomo Kenyatta International Airport in possession of over 400 live ants of the species Messor Cephalotes, a native African species protected under Kenyan law. They were charged with dealing in wildlife species without a permit, contrary to Section 95(c) of the Wildlife Conservation and Management Act, 2013. Both accused persons pleaded guilty. Issues (i) Whether trafficking in lesser-known wildlife species such as ants constitutes an offence under Kenyan wildlife law. (iii) What constitutes an appropriate sentence for wildlife crimes involving non-charismatic species. (iv) Whether Kenya’s courts should factor in environmental, ecological, and global wildlife trafficking concerns in sentencing. Holding 1. The court confirmed that Messor Cephalotes is a species protected under the Wildlife Conservation and Management Act, and that dealing in such wildlife without a permit constitutes an offence under Section 95(c) of the Act. 2. The court described the offence as part of a growing global trend of bio-piracy and transnational environmental crime. It observed that lesser-known species such as ants play an important ecological role and must be accorded equal legal protection. 3. The court accepted a victim impact statement from the Kenya Wildlife Service, highlighting the crucial ecological function of ants in pest control, seed dispersal, soil regeneration, and biodiversity conservation. Scientific analysis by the National Museums of Kenya confirmed the negative environmental implications of such trafficking including extinction of local species. 4. Each accused was sentenced to a fine of KSh 1,000,000, or 12 months’ imprisonment in default, the mandatory minimum under Section 95(c) of the Wildlife Conservation and Management Act. The court ordered the repatriation of the foreign national upon completion of the sentence or payment of the fine. The court also directed the destruction or lawful disposition of the wildlife specimens in consultation with the National Museums of Kenya. 5. The court noted that existing wildlife laws and sentencing guidelines were primarily geared toward charismatic megafauna and inadequately addressed crimes involving invertebrates and lesser-known species. In addition, the court called for the development of sentencing guidelines for invertebrate-related wildlife crimes, the harmonisation of biodiversity laws, and creation of legal frameworks for benefit-sharing in accordance with the Nagoya Protocol. ii. Kadhis’ Courts The Kadhis’ Courts continued to provide clarity in the interpretation and application of Muslim law in matters of marriage, divorce, and inheritance. In the year under review, they pronounced decisions affirming procedural safeguards in the registration of marriages and restated the objectives of marriage under Islamic law. Registration Proceedings of Marriage as Provided for in Muslim Law SMA & JMH (Miscellaneous Case E105 of 2024) [2024] KEKC 22 (KLR) Brief facts 6:16 PM THE KENYA GAZETTE 21st November, 2025 8148 8148 In an ex-parte application for the formal registration of marriage solemnised on 2nd February 2021 in accordance with Muslim law, the Applicants sought for issuance of a marriage certificate under the provisions of the Kadhis' Courts Act and the applicable Kenyan and Islamic law. Issues The issues for determination by the court are as follows: i. Whether the marriage between the 1st and 2nd Applicants was validly solemnised under Islamic Sharia law. ii. Whether the Applicants are entitled to formal registration of their marriage under Kenyan law. Holding 1. The Kadhis’ Court Act grants the Kadhis’ Court jurisdiction to determine questions of Muslim personal law, including matters related to marriage, divorce, and inheritance where all parties profess the Muslim faith. 2. Article 45(4) of the Constitution of Kenya, 2010, recognises the right of individuals to marry under systems of personal law, including Muslim law. The Marriage Act of 2014 also provides for the formal registration of marriages solemnised under different religious and customary systems. 3. The Applicants’ marriage was validly solemnised under Muslim law pursuant to the essential elements of marriage under Muslim law, including mutual consent, the presence of witnesses, and an agreement on dowry. The non-payment of dowry did not invalidate the marriage but remained a debt owed by the 1st Applicant to the 2nd Applicant. 4. The applicants were entitled to the formal registration of their marriage under both Islamic and statutory law. The Marriage Act of 2014 allows for the registration of marriages conducted under religious rites, and the Kadhis’ Courts Act empowered the court to register marriages conducted under Muslim law. Application allowed The Objectives of Marriage Under Muslim Law FZS v OAM (Divorce Cause E006 of 2024) [2024] KEKC 25 (KLR) (11 December 2024) Brief facts The petitioner applied for an order against the respondent that the marriage between the parties be terminated. The grounds were that the respondent failed to fulfil his duties and responsibilities as a husband and father and that since the petitioner left her matrimonial home and went to reside with her parents, the respondent has never showed any interest in their marriage. Issues 1. What are the objectives of marriage under Islamic Law? 2. What are the consequences when all or some objectives of marriage are not achieved? Holding i. The objectives of marriage as mentioned by the Qur’aan are comfort, compassion and love between married couples as it states: “And among His signs is that He has created for you, from your selves, mates, that you may incline towards them and find rest in them, and He has engendered love and tenderness between you. Surely in this are signs for people who reflect.” 30:21 ii. When all or some of the objectives of marriage are not being achieved, then one or both parties in a marriage might be finding harm in the relationship and as a result, as stipulated by one of the major Islamic jurisprudential principles: “Harm/Evil must be removed”. iii. The Court held that in getting rid of harm/evil, parties may utilise several methods like arbitration, mediation, conciliation and lastly termination of the marriage. Petition allowed iii. Small Claims Courts The Small Claims Courts consolidated their transformative role in delivering quick, affordable, and accessible justice. During the year, the courts rendered decisions that clarified due process in auctioning property for third-party debts and made determination on the enforceability of oral contracts alleged to be tainted by illegality. The Legality of Auctioning Property for a Third-Party Debt and the Requirement of Due Process in Recovery Proceedings David Edmond Buyala v Lufree Auctioneers & Busia Bidii Yangu Credit & Savings, Small Claims Court at Malaba Case No. SCCC/E006/2025 Brief facts The claimant filed a claim for KSh 350,000 against the 1st respondent and 2nd respondent after his livestock—one bull, one milking cow, and a calf— were seized and auctioned to recover a loan of KShs. 27,200 owed by one Hilda Wafula. The Claimant denied knowing Hilda Wafula or owing the debt. The respondents defended the seizure, alleging that Hilda Wafula was the claimant’s wife and that she had listed the animals as security for the loan. The seizure was conducted in the presence of armed police officers, and the livestock were taken from the claimant’s homestead. Issues 1. Whether the Respondents lawfully seized and auctioned the claimant’s property to recover a debt owed by a third party. 2. Whether due process was followed in executing the auction. 3. Whether the Claimant was entitled to damages for unlawful conversion and trespass to goods. Holding i. The Court held that under the Marriage Act, a marriage must be proved by a marriage certificate; a chief’s letter was insufficient proof. Even if Hilda Wafula was the claimant’s wife, she was a distinct legal entity, and her debts could not be enforced against her spouse’s property 21st November, 2025 THE KENYA GAZETTE without consent. There was no evidence the claimant had consented to the use of his property as loan security. Since the animals were taken from his homestead and no other claimants emerged, the Court concluded the livestock belonged to the claimant. ii. The Court found that the Movable Property Security Rights Act, 2017 applied and required that security interests in movable property be registered and enforced through the court process. The lender should have sued the borrower and pursued lawful execution. The auction was therefore unlawful. The 1st respondent failed to produce evidence of auction compliance (e.g., advertisement, list of bidders), which rendered the sale irregular and non-binding. iii. The Court held both respondents liable for conversion and trespass to goods, which are torts actionable per se. It found that despite the absence of a valuation report, general damages could be awarded based on the court’s discretion and circumstances of the case. The sum of KShs. 350,000 claimed by the claimant was deemed reasonable and judgment to that effect was entered in favour of the claimant. Claim allowed The Enforceability of Oral Contracts Allegedly Tainted by Illegality and the Test for Illegal Performance in Contract Law First Dawahub Limited v Yussuf Abdi Hussein, Small Claims Court at Nairobi, Case No. E7614 of 2024 Brief facts The claimant, a hospital, filed suit seeking KSh 150,000 from the respondent. The claimant alleged that it had paid the respondent KSh 150,000 based on his representation that he could facilitate the hospital’s empanelment with the National Hospital Insurance Fund (NHIF). After receiving the funds, the respondent failed to deliver on the promise and went into hiding. In response, the respondent alleged that the money was paid as a bribe to help the claimant resolve NHIF issues and that no action could lie in court from such an illegal transaction. Issues 1. Whether the oral contract between the parties was illegal and therefore unenforceable. 2. Whether the Claimant had proven the claim on a balance of probabilities. 3. Whether any relief could be granted in respect of the transaction. Holding 1. The court reaffirmed that in civil cases, the burden of proof lies on the claimant, who must prove the claim on a balance of probabilities. The claimant provided evidence that the money was sent to facilitate empanelment, while the Respondent did not rebut the transaction but instead claimed it was a bribe. The court found no evidence supporting the bribery allegation. 2. The court distinguished between contracts that are void due to inherent illegality and those that are only potentially illegal by performance. The court found that empanelment into an insurance hospital list is not illegal per se, and there was no evidence of fixed intention to perform the agreement through unlawful means. Consequently, the contract was deemed enforceable, especially as the Respondent later expressed willingness to refund the money. 3. The court concluded that the Respondent held the KSh 150,000 unlawfully and was therefore liable to refund the sum. Claim allowed. iv. Tribunals Tribunals continued to enhance administrative justice and sectoral regulation by addressing disputes in specialised domains such as sports, land acquisition, governance of cooperative societies, and legal education. The reported decisions clarified principles on exhaustion of internal remedies, fair administrative action in compulsory acquisition of land, and the legal validity of admission criteria to professional training programmes. Whether Internal Dispute Resolution Mechanisms Must Be Exhausted Before Approaching the Sports Disputes Tribunal Alexander Kiplagat Mutai v The Board of Directors - Kenya Rugby Union, Sports Disputes Tribunal Case No. E013 of 2025 Brief facts The claimant was the elected Chairperson of the Kenya Rugby Union (KRU). He was suspended from his position by a resolution passed at a Special Board Meeting held on 6th March 2025, pending a vote of no confidence at the upcoming Annual General Meeting. The claimant challenged this suspension at the Sports Disputes Tribunal, arguing that the meeting that led to his suspension was convened irregularly, lacked due process, and violated both the KRU Constitution and Board Charter. He further asserted that the internal dispute resolution mechanisms were inadequate and could not offer him an impartial remedy. Issues 1. Whether the Sports Disputes Tribunal had jurisdiction to hear the matter in light of internal dispute resolution mechanisms. 2. Whether there was procedural fairness in the suspension of the claimant. 3. What remedies, if any, should the Tribunal grant. Holding i. The Tribunal found that while internal dispute mechanisms are generally to be exhausted before escalating disputes, the KRU’s internal mechanism was inherently flawed and incapable of offering an impartial or effective remedy—especially since it required the claimant to seek recourse from the same Board that suspended him. Citing the principles of access to justice under Article 48 of the Constitution, the Tribunal held that it had jurisdiction to hear the dispute and that the claim was not premature. ii. The Tribunal held that the Special Board Meeting of 6th March 2025 did not comply with the process outlined in the KRU Constitution. The notice convening the meeting was issued by the Secretary without sufficient justification and with less than 24 hours’ notice to the Chairperson, contrary to the required 14-day period. The claimant was not informed of specific charges, was not given adequate time to prepare a defence, and no disciplinary sub-committee was constituted. This breached his rights under Articles 47 and 50 of the Constitution, which guarantee fair administrative action and the right to be heard. 6:16 PM THE KENYA GAZETTE 21st November, 2025 8150 8150 iii. The Tribunal emphasised that convening a meeting outside the procedures laid out in the KRU’s Constitution and Board Charter rendered its outcome null and void. It found no persuasive reason to justify the failure to observe the 14-day notice requirement, and held that the process violated principles of natural justice, including the right to be heard. iv. The Tribunal declared the 6th March 2025 meeting and resolutions passed therein— including the Claimant’s suspension—illegal, null, and void. In addition, the claimant was reinstated as the duly recognised Chairperson of the Kenya Rugby Union with all attendant privileges. v. The Tribunal made a recommendation to the Kenya Rugby Union to consider reviewing and amending its governance documents to clear the grey areas and the potential points of conflict within its governance processes. In addition, it recommended that the Sports Registrar to inspect KRU's governance practices, citing allegations of impropriety and institutional dysfunction. Compulsory Acquisition and the Requirements to be Met Before the State Can Acquire Private Land Giciri Thuo & 151 Others v National Land Commission & 5 Others, Land Acquisition Petition No. 3 of 2024 [2024] KELAT 1142 (KLR) Brief facts On 27th September 2021, the National Land Commission (NLC) issued