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ELCStruck OutPetition No 6 of 2017· [2019] KEELC 1899 (KLR)

Reuben Mwongela M’itelekwa (suing as the Legal Representative of the estate of M’itelekwa M’mucheke Naituri alias M’itelekwa Mucheke) v Paul Kigea Nabea & 2 others [2019] KEELC 1899 (KLR)

Environment and Land Court
31 July 2019
LMLUCY. N. MBUGUA
4,577 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 struck out a land petition because the owner skipped the required appeal process and didn't plead constitutional violations clearly.

What this practically means

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Executive summary

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This ELC Meru ruling by Lucy N. Mbugua J decided a preliminary objection by the 1st respondent seeking dismissal of a constitutional petition filed on 30 March 2017 concerning land rights in the Antuamburi adjudication section, together with the petitioner's application to amend the petition. The 1st respondent argued that the petitioner, having lost Objection Nos. 859-862 decided on 10.02.2011, failed to appeal to the Minister under section 29 of the Land Adjudication Act, whose decision is final; that a statutory consent under section 30 could not sustain proceedings challenging the adjudication officer's decision; and that the petition lacked particulars of constitutional violations. The petitioner contended that judicial review remedies were sought and that no suit should be summarily dismissed unless hopeless. The court framed four issues and held that the petitioner failed to exhaust the statutory dispute resolution mechanism, following Speaker of National Assembly vs Karume and Article 159(2)(c); that a section 30 consent is required where a claim seeks determination of a right or interest in land, though not for process challenges; that such a consent cannot be used to circumvent the adjudication machinery, the court's role being supervisory only; and that the petition was incompetent for failing to plead constitutional violations with precision, the dispute being one of land ownership rather than a constitutional issue. The preliminary objection was allowed, the petition struck out with costs to the 1st respondent.

Key legal issues

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01

Exhaustion of statutory dispute resolution remedies in land adjudication

Holding

The petitioner, having lost objection proceedings, was bound to appeal to the Minister under section 29 of the Land Adjudication Act before filing a constitutional petition; failure to exhaust the statutory mechanism ousts the court's jurisdiction

Reasoning

The dispute concerned ascertainment of rights and interests in land within the Antuamburi adjudication section, a matter reserved to the statutory adjudication machinery. Having participated in objection proceedings decided on 10.02.2011, the petitioner ought to have appealed to the Minister within 60 days where the Land Adjudication Act applied, or accepted finality where the Land Consolidation Act applied. Authorities establish that where a statute prescribes a dispute resolution mechanism, it must be utilised first, as Article 159(2)(c) promotes such mechanisms.

p. 5
02

Requirement of consent under section 30 of the Land Adjudication Act for filing petitions

Holding

A consent under section 30 is required where the dispute concerns a right and interest in land, but not where the suit merely challenges the adjudication process; in this case the consent would have been required and none was produced

Reasoning

Relying on the preambles of the Land Adjudication Act and Land Consolidation Act, both statutes target ascertainment and recording of rights and interests in land. Following Munyao J in Republic vs Musanka Ole Runkes Tarakwa, a suit questioning the adjudication process rather than the determination of interests does not require consent, but a claim to a determination of a right or interest in land does. Here the petitioner asserted ownership, so consent would be required; the consent referenced in the petition was not availed to the court.

p. 5
03

Whether a section 30 consent can be used to challenge the adjudication officer's decision

Holding

Even with a consent, a party cannot use it to challenge the objection proceedings decision before the court; the court's role is supervisory only

Reasoning

Following Okongo J in Tobias Achola Osindi, once an area is declared an adjudication area, ascertainment and determination of rights and interests is reserved for the officers and quasi-judicial bodies under the Act. The court cannot usurp their functions; its role is supervisory. Consequently the statutory consent cannot be a gateway for the court to determine interests in land that the statute assigns to the adjudication machinery.

p. 6
04

Competency of the petition for failure to specify constitutional violations

Holding

The petition was incompetent because it raised a land ownership dispute, not a constitutional issue, and failed to plead violations with precision

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, a petitioner must set out with reasonable precision the complaint, the constitutional provisions infringed and the manner of infringement. The petition in substance asserted a claim of ownership of land decided in objection proceedings under statutes still in force, and did not raise any constitutional issue, rendering it incompetent and properly struck out on a preliminary objection.

p. 6

Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • Jurisdiction is conferred by the Constitution or legislation and a court cannot exceed it; without jurisdiction a court cannot entertain proceedings
  • A petition seeking constitutional redress must state with precision the provisions violated and the manner of violation
  • A consent by the Land Adjudication Officer under section 30 does not entitle a party to litigate before the court issues that ought to be determined through the statutory adjudication machinery

Court orders

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  1. 1.The Preliminary Objection filed by the 1st respondent is allowed
  2. 2.The petition is struck out
  3. 3.Costs of the petition to the 1st respondent

Authorities

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Legislation

  • Land Adjudication Actsections 5, 6, 26, 29, 30(1); preamble
  • Land Consolidation Actsections 8, 21, 25, 26; preamble
  • Civil Procedure RulesOrder 53 rule 2
  • Law Reform Actsections 8 & 9
  • Constitution of Kenya, 2010Articles 159(2)(c), 165(3)(a)

Cases cited (29)

  • Julia Kaburia vs Manene Kabeere & 5 others
    Civil Appeal No. 340 of 2002
  • Stephen Kungutia & 2 others vs Severina Nchulubi
    Nyeri Civil Appeal No. 221 of 2010
  • Zipporah Nkoyai vs James Kaberia M. & 2 others
    Meru ELC Petition No. 2 of 2012
  • Stephen Michuki Kiunga vs Nkuni M’Turuchiu & 2 others
    Meru H.C Petition No. 2 of 2012 / ELC Petition 21 of 2012
  • Anne Wawuda & 3 others vs Kenya Railways Corporation & another
    (2015) eKLR, Mombasa High Court Petition No. 18 of 2013
  • Speaker of National Assembly vs Karume
    (1992) KLR 425
  • Andrew Lionel Philips & 15 others vs National Direction of Public prosecutions
    CC. 55 of 2004
  • Abdallah Mangi Mohammed vs Laazarus & 5 Others
    (2012) eKLR
  • Nicholas Mugambi & others vs Zachary Baariu & 6 others
    Meru ELC case no. 167 of 2011
  • Samuel Kilemi & another vs Festus Gituma Kuthuka
    Meru HCCA No. 306 of 2013
  • Hon. (Lady) Justice Kalpana H. Rawal vs Judicial Service Commission & others
    Supreme Court Civil Application No. 11 of 2016
  • The owners of motor vessel “Lilians” vs Caltex Oil Kenya Ltd
    (1989) 1 KLR 1
  • Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 others
    (2013) eKLR
  • Mungai vs Council of Legal Education & Others
    East Africa Law Reports [2015] 2EA
  • DT Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & Another
    [1980] eKLR
  • Samuel Kamau & Another v. Kenya Commercial Bank and two others
    Sup. Ct. Civil Application No. 2 of 2011
  • Kanampiu M’Rimberia vs. Julius Kathane and 3 Others
    Meru H.C.C. No. 6 of 2009
  • David Mtawali Kazungu Yaa vs. NLC and 3 Others
    Petition 77 of 2014, Mombasa
  • John Masiantet Saeni vs. Daniel Aramat Lolungiro & 3 Others
    Petition 6 of 2016 Kisii
  • Mutanga Tea & Coffee Company Ltd vs Shikara Limited and Municipal Council of Mombasa
    COA Civil Appeal No. 54 of 2014
  • The Muthaara Njuri Ncheke Council of Elders & Another vs. The Committee Ngare Mara/Gambella Adjudication section and 2 others
    Meru Petition 5 of 2019
  • Republic vs Musanka Ole Runkes Tarakwa Lempaso Ole Kuyioni & 2 others and Joseph Lesalol Lekitio & Others (exparte applicants)
    Nakuru ELC Judicial Review case No. 13 of 2014
  • Tobias Achola Osindi & 13 others versus Cypriano Otieno Ogalo & 6 Others
    H.C.C. No. 4 of 2011 Kisii
  • Timothy Makenge vs Maruga Ngochi
    COA Civil Appeal No. 25 of 1978
  • David Gitahi Suing as the Chairman of Othaya Resident’s Foundation vs Attorney General
    (2014) eKLR
  • Annarita Karimi Njeru vs Attorney General
    (1979) KLR 54
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and others
    Nairobi C.A Civil Appeal No. 290 of 2013 (2013) eKLR
  • Meme vs Republic
    (2004) 1 EA 124
  • Silverio Akubu & 4 Others vs. Charles Baariu Salasio & 3 others
    Meru ELC petition 29 of 2018
Jurisdiction invoked
Article 165(3) of the Constitution (High Court/ELC jurisdiction); petition challenging quasi-judicial adjudication process

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Reuben Mwongela M’itelekwa (suing as the Legal Representative of the estate of M’itelekwa M’mucheke Naituri alias M’itelekwa Mucheke) v Paul Kigea Nabea & 2 others [2019] KEELC 1899 (KLR)", Case Analysis (2019). Petition No 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1899/eng@2019-07-31

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