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ELCDismissedPetition No. 8 of 2016 (Meru/Chuka) - number not expressly stated in the judgment· [2018] KEELC 2257 (KLR)

Nkoroi Njeru v District Land Adjudication & Settlement Officer Meru South District, Director of Land Adjudication, Attorney General & Bauni M’nkambi [2018] KEELC 2257 (KLR)

Environment and Land Court of Kenya
25 July 2018
PNP. M. Njoroge
3,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land petition because the farmer skipped the required land adjudication process, confirming you cannot claim unascertained land rights.

What this practically means

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Executive summary

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The petitioner, a peasant farmer in lower Kandungu, Meru South District, filed a constitutional petition on 8th November 2016 alleging that the 1st respondent, the District Land Adjudication Officer, refused to issue arbitration record (A/R) proceedings despite payment, thereby denying him the opportunity to appeal to the Minister, and that the 1st respondent thereafter registered title to parcels 1243 and 1415 of the lower Kandungu adjudication section in favour of the 4th respondent, who served him with an eviction notice. He sought declarations of rights violation, a declaration of entitlement to the parcels, an injunction against the 4th respondent, and reverting of the parcels to himself. The 4th respondent filed grounds of opposition and submissions contending that the petition was fatally defective, raised no constitutional questions, and was an ownership dispute disguised as a constitutional petition to escape statutory appeal deadlines. The 1st to 3rd respondents relied on the 4th respondent's filings. The court held that all parties agreed the petitioner had not exhausted statutory remedies; that no tangible evidence showed refusal to issue proceedings; that rights to land must first be ascertained through the Land Adjudication Act and Land Consolidation Act processes; and that the petitioner's right to the parcels was inchoate at filing. The court agreed that mandamus via judicial review was the proper remedy for refusal to release proceedings, found the respondents breached no provisions of the two statutes, and concluded the petition was intended to bypass the applicable law. All prayers (a) to (f) were found unmerited; the petition was dismissed with costs to the respondents.

Key legal issues

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01

Exhaustion of statutory remedies under the Land Adjudication Act and Land Consolidation Act

Holding

The petitioner did not exhaust the statutory remedies; his petition was an attempt to bypass statutory deadlines and procedures.

Reasoning

All parties agreed the petitioner had not exhausted the statutory remedies. Apart from the bare allegation that the 1st respondent refused to issue A/R proceedings, no tangible evidence supported it. The court found the petition was designed to escape the time limits for appeals under the two statutes and to circumvent the established process.

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02

Whether unascertained land rights can be the subject of a constitutional petition

Holding

No; rights to land must first be ascertained through the statutory adjudication process before a claim of infringement of the right to own property can arise.

Reasoning

The court held that ascertainment of rights in community land follows the Land Adjudication Act and consolidation follows the Land Consolidation Act. Since the petitioner's right to parcels 1243 and 1415 was inchoate at the time of filing, and no law had determined the land belonged to him, his Article 40 claim could not succeed.

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03

Suitability of a constitutional petition as the vehicle for the claims raised

Holding

The proper route to compel release of adjudication proceedings was judicial review for mandamus; the ownership claims belonged in a substantive suit after due process.

Reasoning

The court agreed with the 4th respondent that the petitioner should have moved the court through another procedure. Where the grievance was refusal to issue proceedings needed to lodge an appeal, mandamus against the 1st respondent was the efficacious remedy; a constitutional petition was an improper vehicle to relitigate ownership.

Legal principles established

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  • A party cannot claim infringement of a right to land ownership before that right has been ascertained through the statutory adjudication procedure.
  • Where an adjudication officer fails to furnish proceedings needed for an appeal, the proper remedy is judicial review for mandamus, not a constitutional petition.

Court orders

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  1. 1.This petition is dismissed.
  2. 2.Costs shall follow the event and are awarded to the respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1), 22(3)(b), 22(3)(c), 40(1), 47(1), 61(2), 159(2)(d)
  • Land Adjudication Actnot specified
  • Land Consolidation Actnot specified
Jurisdiction invoked
Article 22(1) of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)

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, "Nkoroi Njeru v District Land Adjudication & Settlement Officer Meru South District, Director of Land Adjudication, Attorney General & Bauni M’nkambi [2018] KEELC 2257 (KLR)", Case Analysis (2018). Petition No. 8 of 2016 (Meru/Chuka) - number not expressly stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2257/eng@2018-07-25

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