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ELCPartially AllowedMeru ELC Petition (notice of motion dated 8.4.2019)· [2019] KEELC 3355 (KLR)

Muthara Njuri Ncheke Council of Elders & another v Committee of Ngare Mara/Gambella Adjudication Section & 2 others [2019] KEELC 3355 (KLR)

Environment and Land Court
24 May 2019
3,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted land adjudication in areas quietly added by a 2018 corrigendum notice, ruling that expanding adjudication areas requires clear notices and genuine public participation.

What this practically means

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Executive summary

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The applicants/petitioners moved the court by notice of motion dated 8 April 2019 seeking conservatory orders in the nature of a temporary injunction restraining the 1st and 2nd respondents from conducting demarcation and adjudication over the Muthara, Amuthumba/Ngaremara ranching area pending hearing of the main petition. They contended that only the Ngaremara/Gambella adjudication section was gazetted by notice of 11 March 2016, and that a corrigendum notice of 29 June 2018 clandestinely extended adjudication to their communally occupied ranching area without public participation or compliance with section 5 of the Land Adjudication Act (Cap 284). The 2nd and 3rd respondents (Attorney General) relied on the affidavit of the DLASO, Eliab Kamaru, while interested parties joined by consent on 8 May 2019 opposed the application, arguing the petitioners lacked recognition under the Act and that the Act provided dispute resolution mechanisms including a stay of suits under section 30. The court held the suit was properly before it because the challenge targeted the legitimacy of the adjudication process, not the ascertainment of interests in land, so section 30 consent was unnecessary. Comparing the two notices, the court found the corrigendum plainly added areas; the DLASO offered no statutory explanation for it. Public participation findings in the earlier Meru ELC Petition 7 of 2017 related only to the 2016 notice. Holding that public participation must be real and not illusory under Article 10, the court granted conservatory orders limited to the areas added by the corrigendum, allowed adjudication to continue within the original notice area, directed compliance filings, prioritised the hearing, and deferred costs to the main trial.

Key legal issues

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01

Whether the court has jurisdiction over a challenge to the legitimacy of a corrigendum notice despite section 30 of the Land Adjudication Act

Holding

The suit is properly before the court; the dispute challenges the legitimacy of the adjudication process, not purely ascertainment of rights and interests, so consent under section 30 was unnecessary.

Reasoning

The court distinguished between disputes over interests in land, which the Act's dispute resolution mechanisms (sections 12 and 26) address, and disputes over the legality of the adjudication process itself. Relying on its own decision in Meru ELC Petition 7 of 2017 and the Nakuru judicial review authority, it held that challenges to process legitimacy fall outside the Act's internal mechanisms and belong before the court.

p. 3
02

Whether the corrigendum notice of 29/6/2018 complied with section 5 of the Land Adjudication Act

Holding

The corrigendum expanded the adjudication area beyond the initial notice, was unexplained by the DLASO, and failed the statutory requirement to define the adjudication section clearly.

Reasoning

Comparing the two notices, the court found the corrigendum contained 40 lines versus 17 in the original notice and altered the boundary description, indicating additional areas were included. The DLASO, the officer mandated to ensure compliance with section 5, gave no explanation for the corrigendum or the error it purported to correct; explanation came only from counsel from the bar.

p. 3
03

Whether there was public participation in the corrigendum notice

Holding

The respondents failed to demonstrate public participation for the corrigendum; documents relied on predated it or concerned unrelated matters.

Reasoning

The prior finding of public participation in Petition 7 of 2017 related only to the 11/3/2016 notice. Annexures EMK3–EMK6 predated the corrigendum and referred only to the Ngaremara/Gambella section; EMK7 and 8 concerned committee disputes. Invoking Article 10 and the Gakuru authorities, the court held public participation must be real, not illusory.

p. 4
04

Locus standi and occupation of the suit land

Holding

Questions of ownership, occupation and locus cannot be determined at the interlocutory stage and are reserved for the full trial.

Reasoning

The court found the matter hotly contested, with each side questioning the other's identity and standing. Since the dispute is at an infancy stage, these factual questions cannot be resolved on a conservatory application and may be raised at a later stage of the trial.

p. 2

Legal principles established

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  • A notice defining an adjudication section must define the area as clearly as possible; a corrigendum that expands the adjudication area beyond the initial notice without explanation or public participation is unlawful
  • A suit questioning the process of land adjudication rather than determination of interests in land does not require consent of the land adjudication officer under section 30 of the Land Adjudication Act
  • Public participation must be real and not illusory

Court orders

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  1. 1.The adjudication process to continue in Ngaremara/Gambella adjudication section but only in respect of the areas covered in the initial notice issued on 11/3/2016
  2. 2.A conservatory order restraining the respondents from continuing with the adjudication process in the areas added in the corrigendum notice of 29/6/2018 until further directions or until the suit is heard and determined
  3. 3.Parties directed to file all compliance documents pursuant to order 11 of the Civil Procedure Rules
  4. 4.The 2nd and 3rd respondents at liberty to undertake mitigation measures geared towards compliance with applicable law
  5. 5.Suit to be heard on priority basis
  6. 6.Costs of the application to be determined in the main trial

Authorities

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Legislation

  • Land Adjudication Act (Cap 284, Laws of Kenya)Preamble
  • Land Adjudication Act (Cap 284, Laws of Kenya)Section 5(1) and 5(2)
  • Land Adjudication Act (Cap 284, Laws of Kenya)Sections 12 and 26
  • Land Adjudication Act (Cap 284, Laws of Kenya)Section 30
  • Constitution of Kenya, 2010Article 10
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • 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
  • County Government of Meru and another vs the DLASO Tigania East sub county and others
    Meru ELC Petition 7 of 2017
  • Kenya Human Rights Commission vs A.G and another
    Petition No. 87 of 2017 Nairobi Constitutional and Human Rights Division
  • Robert N. Gakuru & others vs Kiambu County Government & 3 others
    (2014) eKLR
  • Kiambu County Government & 3 others vs Robert N. Gakuru & others
    (2017) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (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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Later judgments citing this (6)

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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, "Muthara Njuri Ncheke Council of Elders & another v Committee of Ngare Mara/Gambella Adjudication Section & 2 others [2019] KEELC 3355 (KLR)", Case Analysis (2019). Meru ELC Petition (notice of motion dated 8.4.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3355/eng@2019-05-24

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