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ELCDismissedNot stated in the judgment· [2019] KEELC 1751 (KLR)

Hamisi Mohamed Bakari & 152 others v Land Abjudication Officer & 3 others [2019] KEELC 1751 (KLR)

Environment and Land Court
14 June 2019
AOA. Omollo
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that skipping the Land Adjudication Act's appeal process does not block you from filing a land case in court.

What this practically means

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Executive summary

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The Attorney General, on behalf of the defendants, raised a preliminary objection seeking to strike out the plaintiffs' suit for non-compliance with Section 30 of the Land Adjudication Act (Cap 284), on the grounds that the plaintiffs neither appealed to the Minister against the adjudication process nor obtained the written consent of the Land Adjudication Officer before filing suit. Reliance was placed on the High Court decision in Jackson Koome v Mlimongi M'ikuamba & 2 others (2018) eKLR, on the basis that consent is mandatory and that the court lacked jurisdiction. Mr Kithi for the plaintiffs opposed, arguing the objection came too late, required evidence of gazettement and of the Adjudication Officer's appointment, that Section 30 unconstitutionally limits access to justice under Article 48, and that a party cannot give consent to be sued. The court examined the plaint and found the plaintiffs had themselves admitted living on un-adjudicated land and had described the 1st defendant as a duly appointed officer under Cap 284. It held Section 30 prescribes a process to be followed before coming to court, that suit was premature, and that Section 30 was not unconstitutional. However, applying Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, the court held that Section 30 cannot limit the ELC's jurisdiction, so non-compliance was not fatal. It also applied authority that a preliminary objection may be raised at any time when a case is active. The preliminary objection was dismissed with no order as to costs, and the suit proceeds.

Key legal issues

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01

Effect of non-compliance with Section 30 of the Land Adjudication Act

Holding

Non-compliance does not oust the court's constitutional jurisdiction; the objection fails

Reasoning

The court accepted that Section 30 prescribes a process to be followed before coming to court and that the suit was premature since no appeal to the Minister had been lodged. However, it held that Section 30 cannot limit the powers conferred on the Environment and Land Court by Article 162(2)(b), reproduced in section 13 of the Environment and Land Court Act. Accordingly, coming to court before exhausting the statutory process is not fatal.

p. 2
02

Constitutionality of Section 30

Holding

Section 30 is not unconstitutional; it merely prescribes a process before coming to court

Reasoning

The court found that the provision only provides a process a party should follow before coming to court, and that the court option should follow an unsuccessful or unresolved appeal to the Minister. On that basis it declined to declare Section 30 unconstitutional, even though it ultimately held that non-compliance would not defeat the suit.

p. 2
03

Timing of a preliminary objection

Holding

A preliminary objection may be raised at any time when the case is active

Reasoning

Relying on the High Court decision in Republic v Chief Registrar of the Judiciary & 2 Others exparte Ridey Services Ltd, the court held there is no basis in law for estopping the defendants from raising the objection late. The plaintiffs' counsel had been ready to argue it earlier.

p. 2
04

Consent from an interested Adjudication Officer

Holding

The claim that the 1st defendant could not give consent lacked evidential support

Reasoning

The court noted the plaintiffs never requested consent and had it refused or ignored. Further, the plaintiffs' own plaint admitted they lived on un-adjudicated land and described the 1st defendant as duly appointed under Cap 284, undermining their submissions that gazettement and appointment needed to be proved.

p. 2

Legal principles established

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  • Section 30 of Cap 284 cannot limit the jurisdiction bestowed on the Environment and Land Court by Article 162(2) of the Constitution; it is not fatal where a party comes to court before exhausting the statutory process

Court orders

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  1. 1.The Preliminary Objection is dismissed
  2. 2.No order as to costs
  3. 3.The suit is not struck out and proceeds

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)Section 30(1)
  • Land Adjudication Act (Cap 284)Section 30(2)
  • Land Adjudication Act (Cap 284)Section 29(3)
  • Land Adjudication Act (Cap 284)Section 4(1)
  • Land Adjudication Act (Cap 284)Section 5(1)
  • Land Adjudication Act (Cap 284)Section 5
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (2)

  • Jackson Koome versus Mlimongi M'ikuamba & 2 others
    (2018) eKLR
  • Republic versus Chief Registrar of the Judiciary & 2 Others exparte Ridey Services Ltd
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, section 13

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, "Hamisi Mohamed Bakari & 152 others v Land Abjudication Officer & 3 others [2019] KEELC 1751 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1751/eng@2019-06-14

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