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ELCStruck OutPetition dated 29th March 2017· [2019] KEELC 3007 (KLR)

Ann Kathanga Daniel & 5 others v District Land Adjudication & Settlement Officer - Igembe & another [2019] KEELC 3007 (KLR)

Environment and Land Court
3 June 2019
ECE.C. Cherono
2,876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land petition because the land was still under adjudication, meaning no one could claim ownership rights yet.

What this practically means

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Executive summary

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The petitioners, claiming through the Estate of the late Daniel Bariu, filed a petition and a Notice of Motion on 29th March 2017 seeking declarations that the intended demarcation, subdivision and transfer of land parcels 716-720 Amung'enti 'B' Adjudication Section to strangers was unconstitutional, that an Arbitration Board decision of 7th October 1992 remained binding, and directions to demarcate and register the parcels. A consent injunction was issued on 3rd April 2017, and interested parties were later enjoined. The Attorney General raised a preliminary objection contending lack of locus standi under Article 23, absence of an enforceable Article 40 right, improper invocation of Articles 23, 165 and 258, and ouster of the Court's jurisdiction by Section 30 of the Land Adjudication Act, Cap 284. The respondents and interested parties argued that land under adjudication remains communally owned and that rights crystallise only upon registration, while the Act's internal mechanisms (objections and arbitration, and Section 30's consent requirement) must be exhausted first. The Court upheld the objection: since adjudication was incomplete, the petitioners' asserted interests had not crystallised into enforceable constitutional rights, and Section 30 barred the Court from entertaining proceedings over land in an adjudication section without the Adjudication officer's written consent. Following Kilisu Julius Sile, the Court struck out the petition and the Notice of Motion, with each party bearing their own costs.

Key legal issues

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01

Locus standi under Article 23

Holding

The petitioners lack locus standi because their rights had not crystallised

Reasoning

The suit lands remained subject to an incomplete adjudication process. Interests under African customary land that have not been ascertained and registered do not constitute enforceable constitutional rights; therefore the petitioners could not invoke Article 23 enforcement jurisdiction.

p. 4
02

Identifiable Article 40 right

Holding

No identifiable Article 40 right capable of being enforced existed

Reasoning

The Land Adjudication Act is a transitional statute converting trust (community) land into registered land. Exclusive rights crystallise only upon completion of registration; until then interests enjoy no superior constitutional status under Article 40.

p. 4
03

Ouster of jurisdiction by Section 30, Land Adjudication Act

Holding

The Court's jurisdiction, including constitutional jurisdiction, is barred by Section 30 absent written consent of the Adjudication officer

Reasoning

Section 30 bars institution and entertainment of civil proceedings over land in an adjudication section until the adjudication register is final, unless the Adjudication officer consents in writing. No such consent existed, and the Court adopted the holding in Kilisu Julius Sile on this point.

p. 5

Legal principles established

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  • Until the adjudication process is complete, no person can claim full ownership of land under adjudication
  • Courts, including constitutional courts, lack jurisdiction over disputes concerning land in an adjudication section unless the Adjudication officer consents in writing under Section 30

Court orders

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  1. 1.The Preliminary Objection raised by the 2nd respondent is upheld
  2. 2.The petition and the Notice of Motion dated 29th March 2017 are struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 23, 258, 40, 40(2), 47, 61, 159, 165(2)(b), 165(3)(a), 165(3)(b), 68(2)(e)
  • Land Adjudication ActCap 284 – long title, Sections 16, 24, 26, 27(3), 28, 29(3), 30
  • Land Adjudication ActCap 289 (as cited in the preliminary objection – responsibilities of the 1st respondent)

Cases cited (2)

  • Kilisu Julius Mutungi Sile & S. & 60 others Vs Chairperson, Florlen Adjudication Section ‘B’ Committee & 3 others
    (2016) eK.L.R.
  • George & Onyango Vs Board of Directors Numerical Machinery Complex Ltd.
Jurisdiction invoked
Articles 23, 40, 165(3)(b) and 258 of the Constitution of Kenya, 2010; Land Adjudication Act, Cap 284

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, "Ann Kathanga Daniel & 5 others v District Land Adjudication & Settlement Officer - Igembe & another [2019] KEELC 3007 (KLR)", Case Analysis (2019). Petition dated 29th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3007/eng@2019-06-03

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