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ELCDismissedConstitutional Petition (Meru), filed 20th July 2010· [2017] KEELC 304 (KLR)

Angelo Mucee Kithira & 2 others v Attorney General & 5 others [2017] KEELC 304 (KLR)

High Court of Kenya
13 December 2017
PNP. M. Njoroge
3,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed landowners' petition over 20 acres set aside for a school, ruling that community land disputes must go through statutory adjudication processes, not constitutional petitions.

What this practically means

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Executive summary

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The three petitioners claimed to be beneficial owners of about 20 acres of unregistered land No. 1249 in Gatunga Adjudication Section, ancestral land occupied since the 1940s, and alleged that the County Council of Tharaka set it apart in 1990 for Gatue Secondary School without complying with section 13 of the Trust Land Act (Cap 288) and sections 114-117 of the repealed Constitution, including without hearing or compensation. They sought declarations that the land was never set apart and belonged to them, a permanent injunction, and costs. The 2nd respondent denied any setting apart, asserting the land was community land under adjudication, that the petitioners hastily erected structures in 2005, and that the petitioners had lost a land committee case (No. 258 of 2005) and an arbitration board case (No. 143 of 2008). The 1st and 3rd to 6th respondents argued the petitioners were attempting to bypass statutory adjudication processes. The court framed two issues: whether the 2nd respondent set apart land affecting the suit land, and if so, whether statutory and constitutional processes were followed. It held there was no evidence of any setting apart, so the integrity of the alleged process need not be examined. The land, being under adjudication, was presumed community land under the Land Adjudication Act, and ascertainment of rights had to follow the Land Adjudication and Land Consolidation Acts. The petition was dismissed, interim orders vacated, and costs awarded to the respondents.

Key legal issues

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01

Whether the 2nd respondent set apart the suit land for Gatue Secondary School

Holding

No setting apart was proved; the petitioners produced no evidence of any setting apart by the 2nd respondent's predecessor

Reasoning

The court examined the pleadings and found nothing establishing a setting apart. The 2nd respondent denied setting apart any land, asserting the area was under adjudication and subject to the Land Consolidation and Land Adjudication Acts, with the land merely earmarked for a school. Since no setting apart was found, the integrity of the alleged process did not fall for examination.

p. 8
02

Whether the alleged setting apart complied with section 13 of the Trust Land Act and section 117 of the repealed Constitution

Holding

The question did not arise, as no setting apart was established

Reasoning

Having found no setting apart, the court held it unnecessary to examine the integrity of the process under the defunct Constitution and Trust Land Act. It also distinguished subjection of Trust Land to adjudication statutes under section 116 of the repealed Constitution from setting apart, noting the suit land was uncontroversially undergoing adjudication at the time of filing.

p. 8
03

Whether the petitioners could litigate ownership of land under adjudication through a constitutional petition

Holding

No; the land is presumed community land and rights must be ascertained under the Land Adjudication and Land Consolidation Acts

Reasoning

The court noted it was not controverted that the area was undergoing adjudication when the suit was filed. Under the preamble to the Land Adjudication Act the land is presumed community land, a presumption the petitioners did not rebut. Constitutional petitions cannot substitute the statutory ascertainment processes or dislodge them through the back door.

p. 8

Legal principles established

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  • Ascertainment of rights to community land and land in special areas must follow the Land Adjudication Act and the Land Consolidation Act processes; parties cannot bypass them via constitutional petition
  • Constitutional petitions are reserved for serious breaches of the Constitution, not mere infractions of statutory provisions and procedures
  • Subjection of Trust Land to the Land Consolidation Act and the Land Adjudication Act is distinct from setting apart of Trust Land

Court orders

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  1. 1.The Petition is dismissed.
  2. 2.Any interlocutory orders granted in this petition are vacated forthwith.
  3. 3.Costs are awarded to the Respondents.

Authorities

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Legislation

  • Constitution of Kenya (repealed)sections 70, 114, 115, 116, 117
  • Constitution of Kenya, 2010section 61(2)
  • Trust Land Act (Cap 288)sections 13, 69
  • Land Adjudication Actpreamble
  • Land Consolidation Actnot specified
  • Local Authorities Actnot specified
  • Cap 283 and Cap 284 (referred to by 2nd respondent)not specified

Cases cited (2)

  • Funzi Island Development Limited & 2 others v County Council of Kwale & 2 others
    CA No. 252 of 2005 at Mombasa
  • Jeremiah Muku v Methodist Church of Kenya & Another
    Meru HCCC No. 80 of 2005
Jurisdiction invoked
Original constitutional petition under the repealed Constitution of Kenya (ss. 70, 114-117) and the Trust Land Act (Cap 288); filed 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Angelo Mucee Kithira & 2 others v Attorney General & 5 others [2017] KEELC 304 (KLR)", Case Analysis (2017). Constitutional Petition (Meru), filed 20th July 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/304/eng@2017-12-13

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