Barua Gituma & 6 others v National Land Commission & 3 other ; Mugao Njagi (Interested Parties)& 132 others [2019] KEELC 805 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the conflicting assertions between petitioners, respondents and interested parties could be resolved on affidavit evidence
They could not; the matter would be better heard in a forum where all pertinent issues could be identified and canvassed effectively
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.
Costs in a petition with public interest elements
Parties to bear their own costs because the petition evinces strong veneers of Public Interest Litigation
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.
Legal principles established
#- 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
#- 1.Declined to make orders in terms of Reliefs 3 and 4 (mandamus) as the NLC process relied upon was never completed
- 2.Declined to issue declarations in terms of Reliefs 1 and 2 of the petition
- 3.All reliefs sought in the petition denied
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.