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ELCPartially AllowedConstitutional Petition (ELC Nakuru)· [2019] KEELC 3644 (KLR)

Samuel Ngigi Wahogo & 4 others v Attorney General & 2 others; Samuel Chege(Interested Party) [2019] KEELC 3644 (KLR)

Environment and Land Court
15 April 2019
MSMunyao Sila
5,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed tribunal orders that cancelled landowners' titles without ever hearing them, confirming titles cannot be cancelled behind an owner's back.

What this practically means

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Executive summary

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The nine petitioners, registered owners of parcels in Elburgon/Mukinyai, challenged the award of the defunct Molo Land Disputes Tribunal (Case No. 29 of 2008) and subsequent proceedings before the Rift Valley Land Appeal Tribunal and its adoption by the Molo Magistrate's Court, which led to a decree of eviction and a 2011 notice to vacate on grounds that their land formed part of public utility plots. They sought declarations that the proceedings breached their right to be heard, certiorari to quash the proceedings and orders, and costs. The 1st and 3rd respondents opposed, raising locus standi, res judicata (resolved by a 2017 ruling in the petitioners' favour), non-annexation of the original proceedings, and the six-month limitation for certiorari under Order 53 Rule 2. The court held that being aware of proceedings is not being a party, and that a title holder must be joined before his title can be affected; the petitioners' right to a fair hearing was trampled upon. Independently, the Tribunal lacked jurisdiction under section 3 of the Land Disputes Tribunal Act, as the dispute concerned cancellation of titles as public utility land, not boundaries, occupation or trespass. Since the award was a nullity, the six-month rule did not apply, and Article 23(3)(f) permits judicial review orders in a constitutional petition without a limitation period, following Stephen Kibowen. The court quashed the Tribunal's award and all subsequent orders by certiorari, declined to declare whether the land is public utility land, left the petitioners in possession until a competent determination, and awarded costs against the Attorney General.

Key legal issues

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01

Right to be heard

Holding

The petitioners' right to a fair hearing was breached as they were never made parties or invited to be heard before their titles were affected

Reasoning

The court distinguished awareness of proceedings from being a party. In judicial proceedings, an adverse order cannot be made against a non-party. The Tribunal award was vague ('whoever'), no specific parcels or individuals were named, and the petitioners were never formally invited. Breach of Article 50 fair hearing and Article 40 property rights; natural justice applied under the old constitution too.

p. 4
02

Jurisdiction of the Land Disputes Tribunal

Holding

The Tribunal exceeded its statutory jurisdiction under section 3 of the Land Disputes Tribunal Act

Reasoning

The Tribunal's mandate covered boundary disputes, claims to occupy or work land, and trespass. The question of what ought to be public utility plots and cancellation of titles fell nowhere within that jurisdiction, rendering the award null and void on this additional ground.

p. 5
03

Limitation for certiorari

Holding

The six-month rule under Order 53 Rule 2 does not bar certiorari in a constitutional petition against a null decision

Reasoning

The petition is brought under Articles 22 and 23, not Order 53; the Constitution prescribes no limitation. Following Stephen Kibowen, a decision made without jurisdiction is a nullity that cannot start time running. Certiorari was therefore available despite the lapse of time since the 2008/2007 awards.

p. 6

Legal principles established

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  • A title holder must be made a party to proceedings before his title can be affected or cancelled
  • A decision made by a body without jurisdiction is a nullity incapable of triggering the six-month limitation for certiorari
  • Judicial review orders may be sought in a constitutional petition under Article 23(3)(f), with no constitutional limitation period

Court orders

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  1. 1.Declaration that the proceedings of the Molo Land Disputes Tribunal and the Rift Valley Land Appeal Tribunal and all consequent orders/decree were taken in breach of the petitioners' right to be heard and are null and void
  2. 2.Order of certiorari quashing the proceedings and orders in Molo Land Disputes Case No. 29 of 2008 and Rift Valley Land Appeals Tribunal No. 22 of 2007
  3. 3.Petitioners continue holding title and possession unless and until a competent court or institution orders otherwise
  4. 4.Attorney General to bear costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3), 24, 25, 40, 50(1), 165
  • Former Constitution of KenyaSection 75
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Civil Procedure RulesOrder 53 Rules 2 and 7

Cases cited (1)

  • Stephen Kibowen vs The Chief Magistrate's Court Nakuru & 2 Others
    Civil Appeal No. 211 of 2013
Jurisdiction invoked
Articles 22, 23, 40 and 50 of the Constitution

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, "Samuel Ngigi Wahogo & 4 others v Attorney General & 2 others; Samuel Chege(Interested Party) [2019] KEELC 3644 (KLR)", Case Analysis (2019). Constitutional Petition (ELC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3644/eng@2019-04-15

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