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ELCDismissedPetition dated 3/10/2012 (Meru Environment and Land Court)· [2018] KEELC 2003 (KLR)

Johnson Mithika M’ikiao v Rose Mukiri Thaitumu & 2 others [2018] KEELC 2003 (KLR)

Environment and Land Court
29 August 2018
MNMwangi Njoroge
3,375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's constitutional petition, ruling you cannot claim ownership of land still going through adjudication.

What this practically means

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Executive summary

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The petitioner sought declarations that land he claimed to have gathered, surveyed and registered before 1968 in the URINGU 1 Adjudication Section (parcel No. 1104, 21.64 acres) was legally his, that the 2nd respondent's 1989 subdivision of that parcel in favour of the 1st respondent and the later deregistration of parcels 1104, 656 and 686 were illegal and unconstitutional, and that all post-1989 decisions touching the parcels be annulled, plus future-registration safeguards and costs. He alleged violations of Articles 10, 40, 47 and 60. The 1st respondent denied the land was ancestral property of the petitioner, relying on the arbitration decision of 23/3/1989 allocating her the land, and accused the petitioner of being a vexatious litigant. The 2nd and 3rd respondents argued the claim was a collateral attack on a decision of a body empowered under the Land Adjudication Act, that interests under adjudication had not crystallised into Article 40 property rights, and that the petition was a stale claim brought 29 years later. The court applied the Anarita Karimi Njeru particularity standard and found the petition wanting. It held that land still under adjudication cannot be declared to belong to any individual before the adjudication process attains finality, that no Article 40 right was violated, and that the petitioner was heard by the Committee and the Arbitration Board, so Article 47 was not infringed. The entire petition was dismissed with each party bearing their own costs owing to the parties' family ties.

Key legal issues

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01

Whether the petition satisfied the particularity requirement in pleading constitutional violations

Holding

The petition failed to state or link the particular clauses under Articles 40, 47 and 60 allegedly contravened

Reasoning

Applying Anarita Karimi Njeru and subsequent authority, the court found the petition wanting in particularity: the petitioner did not state the specific rights and specific clauses of Articles 40, 47 and 60 infringed, nor link the facts to those clauses. The principle was applied through AKMM v EMKK and Mary Jemutai Tonje, which place the burden of clearly stating facts and demonstrating the nexus with constitutional provisions squarely on the petitioner.

p. 3
02

Whether Article 40 protects rights in land still undergoing adjudication

Holding

No - until registration, interests under the adjudication process are not complete and exclusive proprietary interests protected under Article 40

Reasoning

The court accepted the 2nd and 3rd respondents' argument that a Land Adjudication Act is a transitional statute converting Trust Land into registered land. Until the process ends and land is registered, no person can enjoy complete and exclusive interest. Article 40 cannot render land under adjudication immune from decisions of adjudication bodies, otherwise the adjudication process would be pointless. Declaring ownership before finality of adjudication would be improper.

p. 4
03

Whether the petitioner's right to fair administrative action under Article 47 was infringed

Holding

No violation of Article 47 established - the petitioner was heard by the Committee and the Arbitration Board

Reasoning

The record showed the petitioner presented his case and called witnesses before the Committee (which ruled in his favour) and before the Arbitration Board sitting with the Land Adjudication Officer, which reversed that decision and ordered the land split. Section 21(3) of the Land Adjudication Act provided a referral mechanism, and no appeal to the Minister was shown. Whatever the capacity in which parties appeared, the dispute was heard and determined, so no Article 47 violation was made out.

p. 4

Legal principles established

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  • A person alleging violation of a constitutional right must set out with specificity the particular provisions of the Constitution, the rights contravened and the manner of contravention
  • The existence of a land adjudication statutory framework precludes application of Article 40 to land still under adjudication; no such land can be held immune from adjudication decisions
  • At the adjudication stage a petitioner may only complain of breach of due process, not of substantive property rights

Court orders

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  1. 1.The entire petition is dismissed
  2. 2.Each party in this petition shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 40, 47(1), 47(2), 60, 61(2), 64
  • Land Adjudication Actsection 21(3)

Cases cited (4)

  • Anarita Karimi Njeru (No.1)
    [1979] 1 KLR 154
  • AKMM -vs- EMKK & 2 Others
    2014 eKLR, Nbi Petition No. 37 of 2014
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance
    Civil Appeal No. 290 of 2012 [2013] eKLR
  • Mary Jemutai Tonje vs Raphael Chebii and 5 Others
    ELC Petition No. 5 of 2014
Jurisdiction invoked
Constitution of Kenya, 2010 - Article 22 (enforcement of Bill of Rights); Articles 40, 47 and 60 invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Johnson Mithika M’ikiao v Rose Mukiri Thaitumu & 2 others [2018] KEELC 2003 (KLR)", Case Analysis (2018). Petition dated 3/10/2012 (Meru Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2003/eng@2018-08-29

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