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ELCDismissedELC Petition No. 367 of 2017 (Formerly NBI Petition No. 264/2015, NBI 596/2015, Meru ELC 18/2015)· [2018] KEELC 2039 (KLR)

Felix Kaunda Lenamparasio & 3 others v Attorney General & 5 others [2018] KEELC 2039 (KLR)

Environment and Land Court of Kenya
31 July 2018
MOM. C. Oundo
4,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land adjudication challenge because the petitioners never used the objection and appeal steps in the Land Adjudication Act first.

What this practically means

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Executive summary

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Four petitioners, suing on behalf of members of Tinga (B) Group Ranch within the Suguta Mar Mar B Adjudication Section No. 4 in Samburu County, challenged the subdivision of the ranch into sixteen parcels, of which fifteen were allegedly irregularly allocated to individuals (mostly retired civil servants) leaving the group ranch only 4951.59 hectares. They sought declarations that the adjudication process and Certificate of Finality were unconstitutional, illegal and unlawful, an order prohibiting issuance of titles, cancellation of title deeds issued over the suit parcels, and directions for investigation and review of the adjudication process for equitable distribution. The petition, unopposed despite service, was heard by way of written submissions. The court framed two issues: compliance with the Land Adjudication Act before filing, and costs. Relying on sections 13, 26, 29 and 31 of the Land Adjudication Act and applying Mohamed Ahmed Khalid v Director of Land Adjudication, the court held that the Act provides an elaborate mechanism for objections and appeals to the Minister, which the petitioners never invoked. There was no evidence that the petitioners lodged objections or appeals, and the Director's letter indicated objections were heard and a certificate of finality issued. The court held the court could not substitute the established statutory bodies and that the petitioners could only seek declaratory or judicial review orders after exhausting statutory mechanisms. The petition was dismissed with no order as to costs on 31st July 2018.

Key legal issues

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01

Whether the petition was premature for failure to exhaust the dispute-resolution mechanism under the Land Adjudication Act

Holding

The petition was prematurely filed because the petitioners never objected to the adjudication register under section 26 nor appealed to the Minister under section 29 of the Land Adjudication Act, and no evidence showed the register was published and objected to.

Reasoning

The court reviewed sections 13, 26, 29 and 31 of the Land Adjudication Act, which provide an elaborate mechanism: claims to the recording officer, publication of the adjudication register, 60 days for objections, and appeal to the Minister whose order is final. A letter from the Director of Land Adjudication showed objections were heard and a certificate of finality issued, but the petitioners were not among those who complained. The court, following Mohamed Ahmed Khalid, held it cannot substitute the established bodies, and the petitioners had to exhaust these mechanisms first.

p. 6
02

Whether rights violations could be established without participation in the statutory adjudication process

Holding

The petitioners could not demonstrate violation of their rights without having first sought to be heard through the mechanism provided under the Land Adjudication Act.

Reasoning

The court found no evidence that any appeal was filed as provided for in the Act. Since the petitioners did not avail themselves of the opportunity to be heard under the Act, they could not demonstrate that their rights were violated. The court emphasized that where the law prescribes clear and express procedures, courts will not interfere, otherwise there would be anarchy and chaos in the courts.

p. 6

Legal principles established

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  • A party aggrieved by an adjudication process must first exhaust the elaborate mechanisms in the Land Adjudication Act (objection under s.26, appeal to the Minister under s.29) before moving the court for declaratory or judicial review orders.
  • The Constitution should be interpreted in a manner that preserves statutes and ensures compliance with existing laws.

Court orders

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  1. 1.The Petition dated 25th June 2015 was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10(1) & (2)(a & b), 19, 20, 21, 22, 23, 24, 27, 35, 40, 47, 60, 63, 159(1)(2), 165(3)(b), 258, 260
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013
  • Land Adjudication Act (Cap 284)Sections 5, 13(1), 20, 23(2)(b), 26, 29, 31
  • Land Registration Act, 2012
  • Community Land ActSections 8(1) and (2)
  • Civil Procedure ActSection 63
  • Land Group Representatives Act

Cases cited (1)

  • Mohamed Ahmed Khalid (Chairman) and 10 Others -vs- Director of Land Adjudication & 2 Others
    [2013] eKLR
Jurisdiction invoked
Articles 22, 23, 165(3)(b) and 258 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013

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, "Felix Kaunda Lenamparasio & 3 others v Attorney General & 5 others [2018] KEELC 2039 (KLR)", Case Analysis (2018). ELC Petition No. 367 of 2017 (Formerly NBI Petition No. 264/2015, NBI 596/2015, Meru ELC 18/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2039/eng@2018-07-31

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