Julius Kiriga Mungania & 3 others v District Land Adjudication and Settlement Officer Tharaka District & 3 others [2018] KEELC 2517 (KLR)
The bottom line
#A Kenyan court stopped a land adjudication in Tharaka Nithi because officials ignored residents, a sacred shrine, and a water catchment area.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency and form of the constitutional petition
The petition satisfied Rule 10(2) of the Practice and Procedure Rules, 2013; the regime is liberal and the Anarita Karimi Njeru objections failed
The court reproduced Rule 10 and held the petition disclosed the required particulars. It noted the liberal approach to enforcement of fundamental rights under the 2010 Constitution, including Rule 10(3)'s tolerance of informal applications, and accordingly rejected the respondents' submission that the petition was defective, incompetent and an abuse of process.
Environmental protection and the precautionary principle
The uncontroverted claims of destruction of a water catchment area and clearing of vegetation justified relief under Article 42 read with Articles 69(1)(b) and (g) and section 18(a) of the Environment and Land Court Act
The court found the petition raised uncontroverted environmental issues concerning a water catchment and felling of trees. It invoked public officers' constitutional environmental duties and the principles in section 18(a) of the Environment and Land Court Act, including the precautionary principle and traditional cultural and social principles, to justify the orders sought.
Cultural and religious rights
The respondents infringed the petitioners' rights regarding their traditional and religious beliefs, including the shrine and circumcision ground
On a balance of probabilities the court accepted the petitioners' evidence that the shrine and Itaniro cultural centre were sub-divided and allocated. It held protection of the shrine and cultural centre was consistent with the Constitution and written law, and found the respondents' actions infringed the petitioners' traditional and religious rights.
Legal principles established
#- Where claims of environmental threat are made and not controverted in a probative manner, the court will employ the precautionary principle and grant the orders sought
- The constitutional petition Rules are liberal and even informal documentation disclosing a rights violation may be accepted under Rule 10(3)
Court orders
#- 1.It is declared that the actions of the 1st and 4th Respondents are unconstitutional, arbitrary, wrongful, null and void and should be stopped forthwith
- 2.A permanent injunction is issued restraining the Respondents, their servants, employees, agents, representatives and/or anyone else acting for and/or on their behalf from continuing with the said Adjudication process until the respondents respect the rights of the petitioners
- 3.Any new adjudication process should take into account public participation as required by the Constitution and the relevant laws, strictly in accordance with the Land Consolidation Act and the Land Adjudication Act, and should be undertaken by any other Land Adjudication Officer other than the officer whose actions spawned this petition
- 4.Each party to bear their own costs, the petition being public interest litigation
- Jurisdiction invoked
- Article 165 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kiriga Mungania & 3 others v District Land Adjudication and Settlement Officer Tharaka District & 3 others [2018] KEELC 2517 (KLR)", Case Analysis (2018). Amended Petition dated 26th April 2017 (Environment & Land Court, Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2517/eng@2018-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.