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ELCStruck OutNot stated in the judgment (Plaint dated 24th January, 2019)· [2019] KEELC 763 (KLR)

Raphael Kangogo & another v Kimetto Kandie Lal & 5 others [2019] KEELC 763 (KLR)

Environment and Land Court
20 November 2019
2,111 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 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

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Executive summary

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The 2nd to 6th Defendants raised a preliminary objection seeking striking out of the Plaint filed on 24th January 2019, contending that the court lacked jurisdiction under Section 29 of the Land Adjudication Act because the ownership dispute over the suit properties had been heard and determined by the Minister in their favour on 19th May 2017, and that the suit was defective for want of the adjudication officer's consent under Section 30 and premature. The 1st Defendant added that the suit was res judicata. The Plaintiffs, claiming as representatives of the Kamindira Family, sought declarations of ownership, injunction, boundary determination, eviction, damages for trespass and mesne profits, and relied on Article 262(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, arguing the adjudication was complete and titles issued. The court framed two issues: jurisdiction and costs. It held that the Minister's decision under Section 29(1) of the Land Adjudication Act is final and not appealable to the Environment and Land Court save through judicial review, which the Plaintiffs had not invoked; Section 13 of the ELC Act does not oust Section 29(1)(b). However, on the consent issue, the court found the adjudication exercise was finalized, as shown by registration of titles on 24th May 2017, so no adjudication officer's consent was needed. Applying the Lilian S and Samuel Kamau Macharia jurisdiction principles, the court upheld the preliminary objection, struck out the suit and awarded costs to the Defendants under Section 27 of the Civil Procedure Act, dated and delivered at Eldoret on 20th November 2019.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a ownership claim already determined on appeal by the Minister under the Land Adjudication Act

Holding

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

Reasoning

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.

02

Whether failure to obtain the adjudication officer's consent under Section 30(1) rendered the suit defective

Holding

No - the adjudication process was complete and titles registered, so consent was unnecessary

Reasoning

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.

p. 3
03

Whether the suit was res judicata

Holding

Effectively yes in substance, as the dispute had been determined to the highest level under the Land Adjudication Act

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendants' preliminary objection dated 20th March, 2019 is upheld
  2. 2.The suit commenced by the Plaint dated and filed on 24th January, 2019 is struck out with costs

Authorities

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Legislation

  • Land Adjudication ActSections 29, 29(1), 29(1)(b), 29(3), 29(4), 30, 30(1)
  • Constitution of Kenya, 2010Article 262(2)(b); Article 159(2)(b)
  • Environment and Land Court ActSection 13 (No. 19 of 2011)
  • Civil Procedure ActSections 1A(1), 1B, 3A, 27 (Chapter 21)
  • Fair Administrative Actions ActNot specified

Cases cited (11)

  • Owners of Motor Vessel "Lilian S" Vs Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank & 2 Others
    Supreme Court Civil Appeal (Application) No. 2 of 2011 [2012] eKLR
  • Watuku Mutsiemi Watuku & Another Vs Republic & 5 Others
    [2018] eKLR
  • Onesmus Daniel Masumbuko & Others Vs Augustino Baya Thotho
    [2019] eKLR
  • Nicholas Tukei Vs Chepochepkatug Loyeruk & 2 Others
    (2013) eKLR
  • Moses Mbuvi Kithi Vs Kalikanda Mwola
    (2008) eKLR
  • William Mutuura Kairiba Vs Samuel Nkari and 2 Others
    (2018) eKLR
  • Jackson Koome Vs M'limongi M'ikuamba & 2 Others
    [2018] eKLR
  • Okiya Omutatah Okoiti & Another Vs Bidco Africa & 4 Others; Uhai Lake Forum (Interested Party)
    (2019) eKLR
  • Francis Musyoki Makenzi & 61 Others Vs Director for Land Adjudication & Settlement & 2 Others, Samuel Mulinge Kyalo & 36 Others (Applicants)
    [2019] eKLR
  • D. T. Dobie & Company (Kenya) Limited Vs Joseph Mbaria Muchina & Another
    [1980] eKLR
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

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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, "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.