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ELCDismissedNot stated in the extract (Meru ELC suit filed 29.11.2011)· [2018] KEELC 2575 (KLR)

Nicholas Mugambi & another (suing as the legal representatives of the Estate of Peter Etharia M’Kailibi) & 4 others v Zachary Baariu & 6 others [2018] KEELC 2575 (KLR)

Environment and Land Court
28 June 2018
JKJ. G. Kemei
2,269 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land dispute because the plaintiffs skipped the cheaper statutory appeal steps available under land adjudication laws before suing.

What this practically means

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Executive summary

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The Plaintiffs, registered during demarcation in Giithu Adjudication Section, sued after the 1st Defendant was awarded the suit parcels following a Land Committee decision that ordered a Meru traditional 'Nthenge' oath, which the 1st Defendant allegedly took clandestinely. They sought declarations that the oath process and subsequent registration were illegal and unconstitutional, that they were the rightful owners, a permanent injunction against the 1st-5th Defendants, general damages against the 6th and 7th Defendants for breach of constitutional rights, Kshs 126,422.40, and costs. The 1st-5th Defendants filed a defence and a preliminary objection contending that the court lacked jurisdiction for want of mandatory consent under section 8 of the Land Consolidation Act and section 30 of the Land Adjudication Act, and that the Plaintiffs had not exhausted the statutory remedies under both Acts. The court framed three issues: exhaustion of statutory remedies, whether the DLASO consent was obtained, and whether the objection was a pure point of law. Applying Mukhisa Biscuit and Oraro v Mbaja on preliminary objections, and following Abdallah Mangi Mohamed on exhaustion, the court found no evidence the Plaintiffs had referred the dispute to the arbitration board, objected under section 26, appealed to the Minister under section 29, or pursued judicial review. The first limb of the objection succeeded. However, a written consent dated 3.10.2011 was found on the court file, so the second limb failed and, being fact-dependent, collapsed as a pure point of law. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Exhaustion of statutory dispute-resolution mechanisms under the Land Adjudication Act

Holding

Plaintiffs failed to exhaust the statutory remedies of arbitration board reference, objection under s.26, or appeal to the Minister under s.29

Reasoning

The court traced the elaborate procedure under ss.20, 22, 26 and 29 of Cap 284 and found no evidence the Plaintiffs used any of these avenues. They also did not pursue judicial review under Order 53 CPR and the Law Reform Act to quash the committee's decision. Citing Abdallah Mangi Mohamed, the court held the statutory procedure should have been utilized, so the first limb of the preliminary objection succeeded.

p. 4
02

Consent under section 30 of the Land Adjudication Act

Holding

A consent dated 3.10.2011 was on the court file; the objection that consent was lacking failed

Reasoning

The court perused the record and found a written consent dated 3.10.2011 given under s.30 of Cap 284 and s.8(1) of Cap 283. The complaint that the consent was unstamped did not defeat it. Because the court had to look at facts on record and exercise discretion, this limb ceased to be a pure point of law and the preliminary objection collapsed on the second limb.

p. 4
03

Whether the preliminary objection was a pure point of law

Holding

First limb succeeded as pure law; second limb collapsed as it required examination of facts and discretion

Reasoning

Applying Mukhisa Biscuit and Oraro v Mbaja, the court outlined the criteria for a true preliminary objection. The exhaustion limb was a matter of law capable of disposing of the suit, but the consent limb required the court to examine the record and exercise discretion, thus blurring factual aspects. The objection therefore succeeded in part.

p. 4

Legal principles established

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  • Where a statutory mechanism exists for resolution of a land dispute, that statutory procedure must be exhausted before resorting to court
  • A valid preliminary objection must be a pure point of law, not blurred with facts or discretion

Court orders

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  1. 1.The Preliminary Objection succeeded on the first limb (failure to exhaust statutory remedies) and the second limb failed (consent was on record)
  2. 2.The Plaintiffs' suit is dismissed
  3. 3.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Land Consolidation Act (Cap 283)sections 8, 8(1), 9, 11, 13, 14, 26
  • Land Adjudication Act (Cap 284)sections 20, 22, 26, 29, 29(3), 30
  • Law Reform Act (Cap 26)sections 8 & 9
  • Civil Procedure RulesOrder 53

Cases cited (3)

  • Mukhisa Biscuit Manufacturing Co. Ltd. – v- West End Distributors Limited
    (1969) EA 696
  • Oraro vs. Mbaja
    (2005) I KLR 141
  • Abdallah Mangi Mohamed Vs Lazarus & 5 others
    (2012) EKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as implied by the suit's subject matter); suit challenged under s.30 Land Adjudication Act and s.8 Land Consolidation Act consent requirements

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Nicholas Mugambi & another (suing as the legal representatives of the Estate of Peter Etharia M’Kailibi) & 4 others v Zachary Baariu & 6 others [2018] KEELC 2575 (KLR)", Case Analysis (2018). Not stated in the extract (Meru ELC suit filed 29.11.2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2575/eng@2018-06-28

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