Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMeru HC Petition No. 21 of 2012 (Petition dated 29/3/2014)· [2018] KEELC 131 (KLR)

Berano M’mwithiga M’arauki v District Land Adjudication & Settlement Officer Tigania East and West & 2 others [2018] KEELC 131 (KLR)

Environment and Land Court
20 December 2018
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The petitioner filed a constitutional petition dated 29 March 2014 alleging that the 1st respondent, the Land Adjudication Officer, acted unconstitutionally by adopting a decision of strangers to the Land Adjudication Act in relation to Parcel No. 1472 Ankamia Adjudication Section, which the petitioner said had been awarded to him by the Land Adjudication Committee. He sought declarations, prohibitory orders, a permanent injunction against the 3rd respondent and costs. The 1st and 2nd respondents filed no responses. The 3rd respondent responded that the objection decision of 22 October 2013 was implemented, that the petitioner should have appealed to the Minister under Section 29 of Cap 284 or sought judicial review, and that the reference to the Njuri Ncheke Council of Elders was to ascertain Meru custom on the Nthenge Oath, not a corrupt adoption of a strangers' decision. The 3rd respondent raised a four-limb preliminary objection: failure to appeal under Section 29(1) and obtain consent under Section 30; the Meru High Court decision in Stephen Michuki Kiunga; use of a chamber summons contrary to rule 19 of the Mutunga Rules; and that the petition was fatally defective and an abuse of process under Order 2 rule 15. The court applied Mukisa Biscuits to hold that the first two grounds required evidence and could not be determined summarily; held the third ground frivolous under Article 159(2)(d); and dismissed the fourth limb as dependent on the failed first three. The preliminary objection was dismissed with costs to the petitioner, and the petition proceeds to full trial.

Key legal issues

#
01

Exhaustion of statutory remedies under Sections 29(1) and 30 of the Land Adjudication Act as a bar to the petition

Holding

The objection fails because it cannot be determined without evidence of what actually happened and who was the proper party to appeal

Reasoning

The court held that whether the petitioner was awarded the land by the committee, whether the 3rd respondent filed an objection out of time, and who should have appealed are factual questions requiring evidence. Relying on Mukisa Biscuits, a preliminary objection cannot rest on disputed facts; therefore limbs 1 and 2 of the objection could not stand at the preliminary stage.

p. 4
02

Non-compliance with rule 19 of the Mutunga Rules (chamber summons instead of notice of motion)

Holding

The ground is frivolous and lacking in merit given Article 159(2)(d) of the Constitution

Reasoning

The petitioner's reliance on Article 159(2)(d), procedural rules as handmaidens of justice, and the overriding objective persuaded the court. Compared to the weight of matters in the petition, the procedural irregularity was trivial and the third limb of the objection was dismissed.

p. 5
03

Whether the petition should be struck out as defective and an abuse of process

Holding

The fourth limb fails because it was premised on the success of the first three limbs, which failed

Reasoning

The court applied D.T. Dobie and Madan JA's dictum that a suit should only be summarily dismissed if hopeless and beyond redemption by amendment. Since limbs 1-3 of the objection failed, the fourth limb, built on their presupposition, necessarily collapsed.

p. 5

Legal principles established

#
  • A preliminary objection cannot be properly raised where there are matters requiring ascertainment by way of evidence
  • Courts must administer justice without undue regard to procedural technicalities
  • The power to strike out pleadings should be used sparingly and cautiously

Court orders

#
  1. 1.The preliminary objection dated 1/8/2014 is dismissed with costs to the petitioner
Jurisdiction invoked
Articles 22, 23, 40, 50 of the Constitution (petition alleging violation of right to property and fair hearing)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Berano M’mwithiga M’arauki v District Land Adjudication & Settlement Officer Tigania East and West & 2 others [2018] KEELC 131 (KLR)", Case Analysis (2018). Meru HC Petition No. 21 of 2012 (Petition dated 29/3/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/131/eng@2018-12-20

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