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ELCStruck OutPet No. 16 of 2017· [2019] KEELC 1345 (KLR)

David Ntiyani & 15 others v Attorney General & another; Charles Panin Parkisua & 15 others (Interested Parties) [2019] KEELC 1345 (KLR)

Environment and Land Court
2 October 2019
MKMohammed Kullow
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners, members of the Inkidongi sub-clan, a minority group in Loita Division of Narok South District, petitioned under Articles 2, 3, 10, 20, 21, 42, 56 and 259 of the Constitution, claiming that the declaration of land adjudication sections in Loita Division was not consultative and that, although represented on the Adjudication Committee, their contributions were neglected. They sought, in effect, to be allocated their own Land Adjudication Sections. The Respondents opposed, asserting that the process declared on 25th March, 2011 was consultative through public barazas, that the committee included members of the Petitioners' community, and that the Petitioners failed to obtain consent under Section 30 of the Land Adjudication Act. The Respondents also argued no identifiable property was owned by the Petitioners and that the claim lay outside the ELC's jurisdiction. Disposed of by written submissions, the court framed two issues: whether the Petitioners' land ownership rights were deprived by the adjudication declarations, and whether they discharged the burden of proof. The court held they had not: no parcels were particularised, and the objection avenue under Section 26 was not used. The court further found the underlying communal identity and distinct community land demarcation issue best litigated in the Constitutional and Human Rights Division of the High Court. The Petition was struck off, with each party bearing their own costs given its public interest character.

Key legal issues

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01

Whether the Petitioners discharged the burden of proving infringement of their land rights

Holding

They did not; the Petition failed to identify specific parcels or the infringement thereon

Reasoning

The petition arose from declarations under Section 5 of the Land Adjudication Act to pave way for subdivision and issuance of individual titles. The Petitioners admitted representation on the Adjudication Committee but alleged their contributions were neglected. The court found no individual parcels were identified as lost and no objections were raised under Section 26, so no infringement was established.

p. 2
02

Whether the Environment and Land Court was the proper forum

Holding

No; the underlying communal identity and community land demarcation issue is best litigated in the Constitutional and Human Rights Division of the High Court

Reasoning

Though the petition was premised on the adjudication process, the court read it as addressing communal identity and the Petitioners' place within numerically larger communities, being a distinct community land demarcation question outside the ELC's remit as framed.

p. 2

Legal principles established

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  • A petitioner alleging infringement of land rights in an adjudication process must particularise the identifiable parcels of land and the infringements alleged, failing which the burden of proof is not discharged
  • Section 26 of the Land Adjudication Act provides an objection avenue against particulars of demarcation and adjudication which must be exhausted before resorting to constitutional litigation

Court orders

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  1. 1.The Petition is struck off
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 42, 50, 56, 259
  • Land Adjudication ActSection 5
  • Land Adjudication ActSection 26
  • Land Adjudication ActSection 30
Jurisdiction invoked
Articles 2, 3, 10, 19, 20, 21, 22, 42, 56 and 259 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms in the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Ntiyani & 15 others v Attorney General & another; Charles Panin Parkisua & 15 others (Interested Parties) [2019] KEELC 1345 (KLR)", Case Analysis (2019). Pet No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1345/eng@2019-10-02

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