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ELCDismissedPetition No. 26 of 2015 (Consolidated with Petition No. 27 of 2015)· [2019] KEELC 1156 (KLR)

Josephine Wanjiku & another v Attorney General; Nabooshi Ene Nkusa & 3 others ( Interested Parties) [2019] KEELC 1156 (KLR)

Environment and Land Court of Kenya
17 October 2019
3,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kajiado dismissed two land petitions because the owners waited too long to challenge Tribunal awards that had already become court judgments.

What this practically means

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Executive summary

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This judgment disposes of two consolidated constitutional petitions, Nos. 26 and 27 of 2015, filed at Kajiado by Kenneth Karugo Mwangi and Josephine Wanjiku against the Attorney General, interested parties and others. The Petitioners sought certiorari to quash two decisions of the Kajiado Central Land Disputes Tribunal (Cases No. 626/03/2011 and 635/04/2011) which had been adopted as judgments and decrees of the Kajiado Senior Resident Magistrate's Court in 2011 and 2012, together with mandamus, rectification of the land register, reversion of subdivided parcels of Kajiado/Kaputiei North land, and compensation for alleged violations of their rights to equality, property, fair administrative action, access to justice and fair hearing. Although the Petition was undefended (the 3rd Interested Party's replying affidavit addressed a withdrawn application, not the Petition), the court determined it on its merits, considering submissions from the Petitioners, the 1st Interested Party and the 3rd Interested Party. The court held that once the Tribunal awards were adopted as judgments of the magistrate's court they ceased to exist and were incapable of challenge; the Petitioners should have quashed the awards before adoption and had not exercised the judicial review remedy available to them. Applying the Anarita Karimi Njeru precision standard, the court found the rights complaints generalized and unproved. Fraud allegations were not strictly proved and the Tribunal was not enjoined, defeating the rectification prayer. Judicial review was held inappropriate for land ownership disputes. The consolidated petitions were dismissed with costs to the Interested Parties.

Key legal issues

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01

Whether the Tribunal awards adopted as court judgments could be challenged by way of petition

Holding

No - the awards ceased to exist upon adoption and the decrees stand

Reasoning

The court traced sections 7 and 8 of the repealed Land Disputes Tribunal Act and associated itself with the decisions in Peterson Maina Karitu and Masagu Ole Koitalel Naumo, holding the Petitioners should have moved to quash the awards before adoption by the SRM's Court. Their failure rendered the decrees extant and the petition untenable.

p. 4
02

Whether the Petitioners' constitutional rights were violated

Holding

No violation proved

Reasoning

Applying the Anarita Karimi Njeru precision standard as restated in Mumo Matemo, the court found the Petitioners' complaints generalized. They also had an available judicial review remedy they did not pursue and failed to demonstrate the Attorney General's liability for the Tribunal's actions.

p. 4
03

Whether fraud justifying rectification of title under section 80 of the Land Registration Act was proved

Holding

Not proved

Reasoning

The court noted rectification is governed by section 80 of the Land Registration Act and that fraud must be strictly proved, citing Kuria Kiarie v Sammy Magera. The Petitioners did not enjoin the Tribunal alleged to have conspired in the fraud and made only generalized statements.

p. 4

Legal principles established

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  • Once a Land Disputes Tribunal award is adopted as a judgment of the magistrate's court, the award ceases to exist and is incapable of being challenged on its own; it must be quashed before adoption
  • Allegations of fraud must be strictly proved
  • Constitutional petitions require reasonable precision in framing violations (Anarita Karimi Njeru principle)
  • Judicial review is not the most efficacious remedy where what is in contention is ownership of suit property

Court orders

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  1. 1.The Petition (Petitions No. 26 of 2015 and 27 of 2015 consolidated) is dismissed
  2. 2.Costs of the Petition awarded to the Interested Parties

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)(a),(b),(c) and (7)
  • Land Disputes Tribunal Act (repealed)Section 7
  • Land Disputes Tribunal Act (repealed)Section 8
  • Civil Procedure Actenforcement of decrees (referenced in s.7 quote)
  • Land Registration ActSection 80
  • Constitution of KenyaArticles 27, 28, 40, 47, 48 and 50

Cases cited (24)

  • Israel Otieno Agina V Attorney General
    (2011) eKLR
  • M'Marete V Republic & 3 Others
    (2004) eKLR
  • Ernest Kevin Luchidio V Attorney General & 2 Others
    (2018) eKLR
  • Masagu Ole Naumo V Principal Magistrate Kajiado Law Courts & Another
    (2014) eKLR
  • Republic V Chairman Eastern Provincial Appeals Tribunal & 4 Others
    (2015) eKLR
  • Evelyn College of Design Limited V Director of Children's Department & Another
    (2013) eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui
    (2014) & (2018) eKLR
  • Nyaga Muindi V james Kirangi Ngari
    (2017) eKLR
  • Cyprian Shivachi Shisanya V Emily Kayanda (Ebenezer Women Group & Another
    (2018) eKLR
  • Margaret Wambui Mwangi v Chief Lands Registrar, Kajiado
    (2019) eKLR
  • Evans Otieno Nyakwama V Cleophas Bwana Ongaro
    (2015) eKLR
  • Kuria Kiarie & 2 Others V Sammy Magera
    (2018) eKLR
  • John Mbugua Gitao V Simon Porkoyirt Mokare & 4 others
    (2017) eKLR
  • Ruth Kavindu & Rael Syovonza V Josiah Mbaya Mantu & B Mbaya
    HCCC No. 2091 of 1974
  • Isaac Ngatia Kihagi V Paul Kaiga Githui
    (2017) eKLR
  • Willy Kimutai Kitilit V Michael Kibet
    (2018) eKLR
  • MWN V Inspector General of Police & 4 others
    (2019) eKLR
  • Annarita Karimi Njeru V Republic
    (1976 – 1980) KLR 1272
  • Arthi Highway Developers Limited Vs West End Butchery Limited & 6 others
  • Katende V Haridar & Company Limited
    (2008) 2 EA 173
  • Peterson Maina Karitu V Augustine Mwangi Ndonyi & Another
    (2009) eKLR
  • MASAGU OLE KOITALEL NAUMO v PRINCIPAL MAGISTRATE KAJIADO LAW COURTS & ANOTHER
    (2014) eKLR
  • Mumo Matemo v Trusted Society of Human Rights alliance
    [2014] eKLR
  • Livingstone Kunini Ntutu Vs Minister for Lands & 4 others
    (2014) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 27, 28, 40, 47, 48 and 50 of the Constitution invoked by the Petitioners)

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, "Josephine Wanjiku & another v Attorney General; Nabooshi Ene Nkusa & 3 others ( Interested Parties) [2019] KEELC 1156 (KLR)", Case Analysis (2019). Petition No. 26 of 2015 (Consolidated with Petition No. 27 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1156/eng@2019-10-17

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