Raphael Kangogo & another v Kimetto Kandie Lal & 5 others [2019] KEELC 763 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a family land dispute because the Minister's decision under the Land Adjudication Act is final and can only be challenged through judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a ownership claim already determined on appeal by the Minister under the Land Adjudication Act
The court has no jurisdiction; the Minister's decision under Section 29(1) is final and this suit, not framed as judicial review, is incompetent
Both sides agreed the ownership dispute was heard through the adjudication machinery up to the Minister, whose decision of 19th May 2017 favoured the Defendants. Section 29(1) makes the Minister's order final. Superior courts have held that decision is not appealable to the ELC except via judicial review, which the Plaintiffs did not invoke. Section 13 of the ELC Act does not oust Section 29(1)(b) of the Land Adjudication Act. Continuing the suit would contravene Article 159(2)(b) and Sections 1A, 1B and 3A of the Civil Procedure Act.
Whether failure to obtain the adjudication officer's consent under Section 30(1) rendered the suit defective
No - the adjudication process was complete and titles registered, so consent was unnecessary
The Plaintiffs annexed green cards showing the suit properties were registered on 24th May 2017, after the Minister's appeal decision, confirming the adjudication register had become final under Section 29(3). Since no adjudication exercise was ongoing, the consent requirement did not apply, consistent with the decision in Francis Musyoki Makenzi. The court thus rejected that limb of the preliminary objection even as it upheld the objection on the finality of the Minister's decision.
Whether the suit was res judicata
Effectively yes in substance, as the dispute had been determined to the highest level under the Land Adjudication Act
The 1st Defendant argued the claim was res judicata since the ownership question had been decided against the Plaintiffs up to the Minister. The court found both sides agreed the dispute had been heard by all entities under the Act to the highest level, and framed its ruling on jurisdiction rather than on res judicata as such, striking out the suit for want of jurisdiction.
Legal principles established
#- The Minister's decision on appeals under Section 29(1) of the Land Adjudication Act is final and not amenable to appeal to the Environment and Land Court, save through judicial review
- Where a court has no jurisdiction conferred by the Constitution or other written law, it has no basis to continue with proceedings
- Where the adjudication exercise has been finalized and titles issued, consent of the adjudication officer under Section 30(1) is not required before filing suit
Court orders
#- 1.The Defendants' preliminary objection dated 20th March, 2019 is upheld
- 2.The suit commenced by the Plaint dated and filed on 24th January, 2019 is struck out with costs
- Jurisdiction invoked
- Environment and Land Court Act, Section 13; objection based on Sections 29 and 30 of the Land Adjudication Act (Chapter 284)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Kangogo & another v Kimetto Kandie Lal & 5 others [2019] KEELC 763 (KLR)", Case Analysis (2019). Not stated in the judgment (Plaint dated 24th January, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/763/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.