Josephine Wanjiku & another v Attorney General; Nabooshi Ene Nkusa & 3 others ( Interested Parties) [2019] KEELC 1156 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Tribunal awards adopted as court judgments could be challenged by way of petition
No - the awards ceased to exist upon adoption and the decrees stand
The court traced sections 7 and 8 of the repealed Land Disputes Tribunal Act and associated itself with the decisions in Peterson Maina Karitu and Masagu Ole Koitalel Naumo, holding the Petitioners should have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.
Whether the Petitioners' constitutional rights were violated
No violation proved
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.
Whether fraud justifying rectification of title under section 80 of the Land Registration Act was proved
Not proved
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.
Legal principles established
#- 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
#- 1.The Petition (Petitions No. 26 of 2015 and 27 of 2015 consolidated) is dismissed
- 2.Costs of the Petition awarded to the Interested Parties
- Jurisdiction invoked
- Original constitutional petition jurisdiction (Articles 27, 28, 40, 47, 48 and 50 of the Constitution invoked by the Petitioners)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.