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ELCDismissedPetition dated 21st September 2018 (number not stated in the judgment)· [2019] KEELC 805 (KLR)

Barua Gituma & 6 others v National Land Commission & 3 other ; Mugao Njagi (Interested Parties)& 132 others [2019] KEELC 805 (KLR)

Environment and Land Court of Kenya (styled as the High Court of Kenya in the petition)
13 November 2019
22,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~92 min to read original · ~4 min brief

The bottom line

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The Chuka court dismissed a community challenge to land adjudication in Tharaka Nithi, ruling the NLC's review process was never completed, and sent the parties back to the Commission.

What this practically means

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Executive summary

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Seven petitioners, resident in Gakurungu Sub Location within the Tunyai 'B' Adjudication Section in Tharaka Nithi County, petitioned on their own behalf and on behalf of over 400 residents, challenging the land adjudication process conducted in the area. They sought declarations that the process was fraudulent, illegal and void ab initio and infringed Articles 27, 40 and 47 of the Constitution, plus orders of mandamus compelling the National Land Commission to recall and revoke all titles issued in the section and compelling the respondents to conduct a fresh re-adjudication. They relied heavily on a letter dated 23rd November 2016 from the Chairman of the NLC which found the adjudication flawed and recommended revocation of titles and re-adjudication. The respondents (through the Attorney General) and interested parties opposed the petition, citing inordinate delay, lack of specificity, failure to exhaust the objection and appeal mechanisms under the Land Adjudication Act, and the finality of issued titles. Framing four substantive issues plus costs, the court examined the NLC letter and found that its closing paragraph, inviting deliberation and concurrence on the recommendations, showed the process was incomplete - the Commission had not made the determinations the petitioners claimed. Finding the parties' assertions irreconcilable on affidavit evidence and the NLC process inchoate, the court declined all four reliefs, advised the petitioners to return to the NLC to conclude the process with all stakeholders, and, characterising the petition as public interest litigation, directed each party to bear their own costs.

Key legal issues

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01

Whether the NLC letter of 23rd November 2016 constituted a determination that the adjudication was a historical injustice, entitling the petitioners to mandamus to implement it

Holding

The letter was not determinative; it contained only the Chairman's recommendations to the Land Administration Committee awaiting concurrence, so the process was incomplete and mandamus could not issue

Reasoning

The court examined the closing paragraph of the NLC letter, which asked the Land Administration Committee to deliberate and give concurrence before action could proceed. The court reasoned that the NLC did not therefore make the recommendations attributed to it by the petitioners, and that compelling respondents to implement an inchoate process would be improper. The petitioners' evidential foundation for the claimed determination thus failed.

p. 31
02

Whether the conflicting assertions between petitioners, respondents and interested parties could be resolved on affidavit evidence

Holding

They could not; the matter would be better heard in a forum where all pertinent issues could be identified and canvassed effectively

Reasoning

The court noted that the parties made diametrically incongruent assertions: the interested parties said the adjudication was properly done, the petitioners said it was flawed, and the respondents attacked the extent of the petitioners' participation in the statutory dispute-resolution mechanisms. Being purely word against word on affidavits, the court found the issues could not be effectively settled on the material before it.

p. 30
03

Costs in a petition with public interest elements

Holding

Parties to bear their own costs because the petition evinces strong veneers of Public Interest Litigation

Reasoning

Although all reliefs were denied, the court took the view that the petition raised weighty issues touching on the community's land grievances and was brought in the public interest. It therefore departed from the ordinary rule that costs follow the event and directed that each party bear its own costs.

p. 32

Legal principles established

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  • A letter containing recommendations by the Chairman of the National Land Commission which invites deliberation and concurrence is not a determination of the Commission and cannot ground orders of mandamus or declarations of violation

Court orders

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  1. 1.Declined to make orders in terms of Reliefs 3 and 4 (mandamus) as the NLC process relied upon was never completed
  2. 2.Declined to issue declarations in terms of Reliefs 1 and 2 of the petition
  3. 3.All reliefs sought in the petition denied
  4. 4.Petitioners advised to go back to the National Land Commission so that the inchoate process can be concluded with the participation of all stakeholders
  5. 5.Each party to bear their own costs
Jurisdiction invoked
Articles 23, 67, 68 of the Constitution; Article 159; Environment and Land Court Act

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, "Barua Gituma & 6 others v National Land Commission & 3 other ; Mugao Njagi (Interested Parties)& 132 others [2019] KEELC 805 (KLR)", Case Analysis (2019). Petition dated 21st September 2018 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/805/eng@2019-11-13

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