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ELCDismissed· [2019] KEELC 4543 (KLR)

Kyumwa Malii & another v Jackson Nyamai & 2 others [2019] KEELC 4543 (KLR)

Environment and Land Court
20 February 2019
2,049 words in judgment
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The bottom line

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Kenya's Environment and Land Court can hear land disputes alleging fraudulent implementation of an adjudication decision, even decades later.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Mbogo, J) determined a notice of preliminary objection dated 10th July 2018 filed by the 1st and 3rd Defendants seeking to strike out the Plaintiffs' suit. The Defendants argued that the suit offended Section 29(1)(b) of the Land Adjudication Act, Cap 284, because the Minister's decision in Appeal No. 242 of 1974 was final, had been implemented in 1985 with boundaries fixed, and that any challenge should have been by judicial review; they further contended the suit was res judicata, frivolous and an abuse of process. The Plaintiffs countered that the objection failed the Mukisa Biscuits and Oraro v Mbaja threshold since ground 3 raised factual issues; that they did not challenge the Minister's decision but alleged that the 1st Defendant's late father connived with the Surveyor to demarcate the land contrary to that decision; and that the ELC had jurisdiction under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. The court agreed that ground 3 raised issues of fact requiring evidence, distinguished John Masiantet Saeni (where the petitioner challenged the Minister's decision itself), and followed Stephen Ntongai M'Mailutha on the point that claims of fraudulent implementation fall outside judicial review. The court held it was clothed with jurisdiction notwithstanding that the Plaintiffs came to court 44 years after implementation, and dismissed the preliminary objection with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law

Holding

Ground 3 of the objection raised factual issues requiring evidence and therefore failed as a preliminary objection

Reasoning

The court applied the Mukisa Biscuits and Oraro v Mbaja tests. It found that the ground alleging that boundaries were fixed and the matter was res judicata required proof of facts through evidence. It also noted the 1st Defendant had not filed a statement of defence, and a ground entangled with factual contest cannot dispose of the suit as a preliminary point of law.

p. 3
02

Whether the Plaintiffs were required to seek judicial review instead of filing a plaint

Holding

Distinguished: the Plaintiffs do not challenge the Minister's decision but its implementation, which is a claim of fraud outside the realm of judicial review

Reasoning

Relying on Stephen Ntongai M'Mailutha, the court held that a claim alleging fraudulent alterations and fraudulent implementation of an adjudication decision is outside judicial review and properly lies before the ELC. The case was distinguished from John Masiantet Saeni, where the petitioner challenged the Minister's decision itself via a petition.

p. 3
03

Whether the court had jurisdiction over the dispute after 44 years since implementation of the Minister's decision

Holding

The court is clothed with jurisdiction under Article 162(2) of the Constitution and Section 13 of the ELC Act notwithstanding the delay

Reasoning

The court accepted the Plaintiffs' submission that its jurisdiction under Article 162(2) and Section 13 of the Environment and Land Court Act, 2011 extends to disputes concerning land even where the Minister's decision was implemented decades earlier, and dismissed the objection with costs.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law and must not be blurred with factual details liable to be contested
  • Where a party challenges not the Minister's decision under the Land Adjudication Act but its fraudulent or unlawful implementation, a claim by way of plaint before the Environment and Land Court is competent and does not offend the finality provisions of Section 29(1)(b)
  • The Environment and Land Court has jurisdiction under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act to determine disputes over unlawful implementation of a Minister's adjudication decision notwithstanding lapse of time since implementation

Court orders

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  1. 1.The notice of preliminary objection dated 10th July 2018 is dismissed
  2. 2.Costs of the preliminary objection are awarded to the Plaintiffs/Respondents

Authorities

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Legislation

  • Land Adjudication Act, Cap 284Section 29(1)(b)
  • Constitution of Kenya, 2010Article 162(2)
  • Environment and Land Court Act, No. 19 of 2011Section 13

Cases cited (5)

  • John Masiantet Saeni V Daniel Aramat Lolungiro and 3 others
    eKLR (also cited as [2017] eKLR)
  • Lepore Ole Maito Vs Letwat Kortom & 2 others
    [2016] eKLR
  • Oraro V Mbaja
    [2005] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Limited
    [1969] EA 696
  • Stephen Ntongai M’Mailutha vs. M Minyori M’twerandu & 2 others
    [2010] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kyumwa Malii & another v Jackson Nyamai & 2 others [2019] KEELC 4543 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4543/eng@2019-02-20

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