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ELCOtherConstitutional Petition dated 19th March, 2018 (Meru/Chuka)· [2018] KEELC 2641 (KLR)

Attorney General v Isaiah Muturi Mucee [2018] KEELC 2641 (KLR)

Environment and Land Court
27 June 2018
4,388 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 ruled that land adjudication consent rules cannot block a constitutional petition seeking to protect public school land.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka (P. M. Njoroge, J) determined a notice of preliminary objection dated 10th April 2018 filed by the respondent in a constitutional petition filed by the Attorney General on behalf of Riamikuu Primary School. The respondent, who had previously had a suit against the school in Meru CM's Civil Suit No. 164 of 2015 dismissed for lack of consent from the land adjudication officer, objected that the petition offended section 8 of the Land Consolidation Act (Cap 283) and section 30(1) of the Land Adjudication Act (Cap 284), which prohibit courts from entertaining proceedings over land in an adjudication area without the prior written consent of the adjudication officer. The respondent argued the demarcation process in Ntoroni location had never concluded and no consent had been obtained. The petitioner, through Senior Litigation Counsel J. M. Kiongo, countered that the petition was anchored on constitutional provisions, that the Attorney General is mandated under Article 156(6) to protect public interest, and that statutory provisions cannot bar constitutional remedies, particularly where the public interest in protecting school land is at stake. The court framed a single issue: whether the petition should be dismissed for contravention of the two statutory consent provisions. It held that although the statutory strictures are not mere procedural technicalities, ordinary civil suits and constitutional petitions must be bifurcated; where constitutional rights are alleged to be infringed, the aggrieved party may seek constitutional remedies. Accordingly, the preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether a constitutional petition concerning land in an adjudication area is barred by the consent requirements of section 8 of the Land Consolidation Act and section 30(1) of the Land Adjudication Act

Holding

The preliminary objection was dismissed; the strictures do not apply to constitutional petitions

Reasoning

The court accepted that the statutory consent requirements are not mere procedural technicalities, but held that a constitutional petition cannot be conflated with an ordinary civil suit. Parties whose rights are infringed may seek constitutional remedies, and pending completion of adjudication, both parties and the school pupils have constitutional rights to protection against trespass. The court declined to apply the statutes to bar the petition.

p. 6
02

Whether the preliminary objection was a proper point of law

Holding

The court treated the objection as a proper preliminary objection on a point of law

Reasoning

The court considered the authorities on the nature of preliminary objections (Mukisa Biscuit, Ororo v Mbaja, Nicholas Tukei, J.N.M. v J.N.M.) and found them good authorities in their circumstances, holding that a proper preliminary objection, if upheld, leads to summary disposal of the suit. It then proceeded to determine the single issue framed.

p. 6

Legal principles established

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  • The consent requirements in section 8 of the Land Consolidation Act and section 30(1) of the Land Adjudication Act do not bar a constitutional petition; ordinary civil suits and constitutional petitions must be distinguished
  • Where constitutional rights are allegedly infringed, the aggrieved party has a right to seek constitutional remedies notwithstanding incomplete land adjudication

Court orders

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  1. 1.The Notice of Preliminary Objection dated 10th April, 2018 filed by the respondent is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Land Consolidation Actsection 8
  • Land Adjudication Actsection 30(1)
  • Land Adjudication Actsection 26
  • Land Adjudication Actsection 29(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 1(1)
  • Constitution of Kenya, 2010Article 24(1)(d)
  • Constitution of Kenya, 2010Article 156(6)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Ororo vs Mbaja
    (2005) 1 KLR 141
  • Isaiah Muturi Mucee versus Lucy Chabari and 2 Others
    Meru CM's Civil Suit No. 164 of 2015 (unreported)
  • Nicholas Tukei versus Chepochepkatang Loynek & 2 Others
    Kitale HCCC No. 90 of 2012 [2013] eKLR
  • Nicholas Kiptoo Arap Korir vs Independent Electoral and Boundaries Commission & 6 Others
    (2013) eKLR
  • Kenya National Highway Authority vs Shalien Masood Mughal & 5 Others
    [2017] eKLR; Nairobi Court of Appeal No. 327 of 2014
  • Republic vs Minister for Transport & Communication & 5 Others
  • Mureithi & 2 others (For Mbari ya Murathimi Clan) vs Attorney General & 5 Others
  • Chemei Investment Limited vs The Attorney General & Others
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of constitutional rights (Articles 1(1), 24(1)(d), 156(6) invoked by the petitioner)

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, "Attorney General v Isaiah Muturi Mucee [2018] KEELC 2641 (KLR)", Case Analysis (2018). Constitutional Petition dated 19th March, 2018 (Meru/Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2641/eng@2018-06-27

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