Peter Ndirangu Muchemi v Asiemo Ndatho Marenge [2018] KEELC 271 (KLR)
The bottom line
#A Kenyan court confirmed you can sue over land in an adjudication area if you first get the adjudication officer's written consent.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the lower court over land in an adjudication section
The court upheld the appellant's grounds and found the lower court erred in holding it had no jurisdiction, since the requisite consent of the adjudication officer had been obtained before filing suit
Sections 8 of the Land Consolidation Act (Cap 283) and 30(1) of the Land Adjudication Act (Cap 284) prohibit instituting civil proceedings over land in adjudication areas without the written consent of the adjudication officer. Here, a consent dated 17th October 2013 from the Land Adjudication Officer, Tharaka District, was annexed, so the bar did not apply and the magistrate erred in downing tools.
Effect of the DLASO report and the aborted boundary demarcation
The defendant's refusal to allow boundary fixing did not convert the boundary dispute into a land claim; the lower court's finding to the contrary was wrong
The District Land and Settlement Officer reported that the defendant resisted the demarcation by claiming approximately two acres, concluding it was a land claim, not a boundary issue. The judge disagreed, holding that a party's obstruction of the exercise cannot itself redefine the nature of the dispute. The consent order directing demarcation remained enforceable.
Whether judgment should be entered for the plaintiff on appeal
The appeal succeeded only to the extent of setting aside the striking-out; the court declined to enter judgment for the plaintiff for want of evidential basis
Although the respondent filed no defence and no submissions, the appellate court could not, on the material before it, grant the substantive relief sought in the plaint, including a permanent mandatory injunction. The appropriate remedy was to remit the suit for hearing, with directions that the adjudication officer fix the boundaries under adequate security.
Legal principles established
#- Resistance by a party to the fixing of boundaries does not transform a boundary dispute into a claim for land
- Where the adjudication officer has granted consent under section 30 of the Land Adjudication Act, there is no bar to filing a claim in court alleging interference with property
Court orders
#- 1.The judgment delivered by Hon. Mesa L. N, SRM, at Marimanti on 10th May, 2018 is set aside
- 2.The suit is remitted back to Marimanti Law Courts for hearing and determination
- 3.The lower court should order the District Land and Adjudication Officer, Chiakariga 'A' Adjudication Section to fix the disputed boundaries and also order that adequate security be availed to him on the day the said boundaries will be fixed
- 4.Costs for this appeal ONLY are awarded to the Appellant with costs of the proceedings in the lower court remaining at the judicial discretion of the lower court
- On appeal from
- Senior Resident Magistrate's Court, Marimanti
- ELC Case No. 6 of 2013
- Jurisdiction invoked
- Appellate jurisdiction over decisions of subordinate courts in land matters (Environment and Land Court Act); appeal from striking out of plaint under Order 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Benedict Kilemi M’ithinyai v Joseph Ngituyu & another [2021] KEELC 783 (KLR)[2021] KEELC 783 (KLR)24 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Peter Ndirangu Muchemi v Asiemo Ndatho Marenge [2018] KEELC 271 (KLR)", Case Analysis (2018). Civil Appeal No. 5 of 2018 (arising from Marimanti ELC Case No. 6 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/271/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.