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Court of AppealDismissedCivil Appeal 213 of 2019· [2022] KECA 665 (KLR)

Arithi Self Help Grazing Group v Buuri & another

Court of Appeal
8 July 2022
WKW KaranjaFSF SichaleKLK I Laibuta
4,282 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land disputes in areas under active adjudication must go through the statutory process first, not the courts.

What this practically means

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Executive summary

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The Court of Appeal (W Karanja, F Sichale & K I Laibuta, JJA) dismissed an appeal against the Environment and Land Court at Meru (Lucy N. Mbugua, J), which had on 25 July 2018 dismissed the appellant's constitutional petition with costs. The appellant, Arithi Self Help Grazing Group, claimed that land in the Kiirua/Kisima area had been allocated to it by the defunct Meru County Council in 1982 and later subdivided to unknown persons, contravening its Article 40 right to property. The respondents countered that the land lay in an adjudication section declared in 1983, the appellant's rights were never recorded, its objection lodged in 2003 remained undetermined, and a fresh demarcation was underway following consent orders in Civil Appeal No. 129 of 2005. The respondents filed no submissions and did not appear at the appeal hearing. Framing four questions, the Court held that the appellant's right of claim had not accrued: until completion of adjudication and registration it enjoyed only usufructuary rights over unregistered community land. Consequently, the ELC had no jurisdiction to entertain the petition, since the Land Adjudication Act prescribes objections to the Adjudication Committee and appeals to the Minister, and judicial intervention during an ongoing adjudication must be withheld except in support of the process. The Court applied the exhaustion doctrine and the principle that conjectural fears are not justiciable, affirmed the judgment below, and dismissed the appeal with costs to the respondents.

Key legal issues

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01

Whether the appellant's property rights had accrued before completion of adjudication and registration

Holding

They had not; the appellant enjoyed only usufructuary rights over unregistered community land pending adjudication and registration.

Reasoning

The suit property remained unregistered and subject to ongoing adjudication. Only upon completion of demarcation, adjudication and registration as proprietor could the appellant assert property rights capable of legal protection beyond a usufruct. Claims in the nature of a registered proprietor's rights cannot be asserted before registration.

p. 5
02

Whether the ELC had jurisdiction over the petition

Holding

It did not; the statutory adjudication mechanism had to be exhausted first, and courts may only intervene in support of the process.

Reasoning

The adjudication process was ongoing and the appellant's objection under the Land Adjudication Act was undetermined. Objections lie to the Adjudication Committee and appeals to the Minister, not to courts. The exhaustion doctrine and the principle that jurisdiction is everything meant the ELC could not entertain the petition except in support of the process.

p. 8
03

Whether fears of future subdivision and allocation were justiciable

Holding

No; conjectural or anticipatory controversies are not ripe for judicial determination.

Reasoning

The court applied the principle that courts do not try mere intentions or hypothetical fears. A justiciable controversy must be existing and ripe for determination, not conjectural or anticipatory. The appellant's fears were precisely what the adjudication process exists to allay.

p. 5

Legal principles established

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  • Until completion of adjudication and registration, a claimant has only usufructuary rights that cannot be asserted as property rights of a registered proprietor.
  • While a land adjudication process is ongoing, courts lack jurisdiction to determine interests in land in the adjudication area, save in support of the process.
  • Where a clear statutory procedure for redress exists, it must be strictly followed before invoking the court's jurisdiction.

Court orders

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  1. 1.The appellant's appeal be and is hereby dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(1) and (2)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 260
  • Land Adjudication Actsection 13(1)
  • Land Adjudication Actsection 26(1)
  • Land Adjudication Actsection 27(2)
  • Land Adjudication Actsection 29(1)
  • Land Registration Act

Cases cited (9)

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 others
    [2015] eKLR

    Duty of a first appeal court to re-assess evidence and reach its own conclusions

  • Selle v Associated Motor Boat Co.
    [1968] EA p.123

    First appeal is by way of retrial; court must reconsider and evaluate evidence itself

  • Republic vs. National Employment Authority & 3 others Ex-Parte Middle East Consultancy Services Limited
    [2018] eKLR

    Definition of a justiciable controversy - ripe, not conjectural or anticipatory

  • Transvaal Coal Owners Association vs. Board of Control
    1921 TPD 447

    Courts do not solve hypothetical problems; declaratory actions require actual infringement

  • Tobias Achola Osindi & 13 others vs. Cyprianus Otieno Ogalo & 6 others
    [2013] eKLR

    Court has no jurisdiction to determine interests in land in an adjudication area; its role is supervisory only

  • Speaker of the National Assembly vs. Karume
    [1992] KLR 21

    Mandatory requirement to exhaust prescribed procedures before court intervention

  • Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others
    [2015] eKLR

    Exhaustion doctrine - courts are fora of last resort

  • The Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd.
    (1989) KLR 1

    Jurisdiction is everything; without it a court has no power to take any step

  • Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated

On appeal from
Environment and Land Court of Kenya at Meru
ELC Petition No. 28 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164 of the Constitution (not expressly cited); appeal from ELC constitutional petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Arithi Self Help Grazing Group v Buuri & another", Case Analysis (2022). Civil Appeal 213 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/665/eng@2022-07-08

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