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ELCStruck OutMemorandum of Appeal dated 6th February 2017 (Malindi)· [2019] KEELC 4932 (KLR)

Onesmus Daniel Masumbuko & others v Augustino Baya Thotho [2019] KEELC 4932 (KLR)

Environment and Land Court
18 January 2019
JOJ.O. Olola
831 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out an appeal against a Minister's land adjudication decision, confirming that such decisions are final and can only be challenged through judicial review.

What this practically means

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Executive summary

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This was an appeal filed in the Environment and Land Court at Malindi by Onesmus Daniel Masumbuku and others against Augustino Baya Thotho, challenging a Minister's decision of 25th October 2016 rendered by FAO Ndunga, Deputy County Commissioner for Kaloleni Sub County, pursuant to Section 29 of the Land Adjudication Act over disputed parcels in the Mwijo/Milimani Adjudication Section, Kilifi. The Appellants raised five grounds, including that the Ministerial Panel dealt with a registered property outside its jurisdiction, heard an out-of-time appeal, failed to resolve competing interests and failed to give reasons. The Respondent filed a preliminary objection contending that the matter was wrongfully instituted as an appeal instead of judicial review under Section 9 of the Fair Administrative Action Act, 2015. Relying on the Supreme Court's decision in Samuel Kamau Macharia v Kenya Commercial Bank, the Court held that jurisdiction flows only from the Constitution or statute. The Land Adjudication Act's internal dispute-resolution machinery culminates in the Minister, whose order is final under Section 29(1)(b), and no further appeal to the Court is provided. The Court sustained the preliminary objection, held the appeal misconceived, struck it out and awarded costs to the Respondents, noting that any challenge lay only by way of judicial review or in the exercise of the Court's supervisory jurisdiction.

Key legal issues

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01

Jurisdiction of the ELC over Ministerial decisions under the Land Adjudication Act

Holding

The Court has no appellate jurisdiction over the Minister's final decision; the dispute can only be entertained in the exercise of supervisory jurisdiction.

Reasoning

The Land Adjudication Act contains an inbuilt dispute-resolution mechanism from the Adjudication Committee up to the Minister, whose order under Section 29(1)(b) is final. The Act provides no further appeal to the Court. Relying on the Supreme Court's ruling in Samuel Kamau Macharia, the Court held it cannot arrogate to itself jurisdiction not conferred by statute, and the appeal was misconceived.

p. 2
02

Correct procedural vehicle for challenging the Minister's administrative action

Holding

The challenge should have been brought by way of judicial review under the Fair Administrative Action Act, not an appeal.

Reasoning

The Minister's decision is an administrative action; absent sufficient reason, an appellate route is unavailable. The Respondent's preliminary objection that the matter should have been instituted as judicial review under Section 9 of the Fair Administrative Action Act was sustained, rendering the appeal misconceived and without foundation.

p. 2

Legal principles established

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  • A court's jurisdiction derives solely from the Constitution or legislation, and lack of jurisdiction goes to the heart of the matter.
  • The Minister's decision on an adjudication appeal under Section 29(1)(b) of the Land Adjudication Act is final, and the ELC cannot hear a further appeal; supervisory or judicial review jurisdiction is the only avenue.

Court orders

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  1. 1.The Appeal dated 6th February 2017 is struck out
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Land Adjudication Act, Cap 284Section 29(1)
  • Fair Administrative Action Act, 2015Section 9(1), (2) and (3)

Cases cited (1)

  • Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
On appeal from
Minister's appeal under Section 29 of the Land Adjudication Act (Ministerial Panel, FAO Ndunga, Deputy County Commissioner Kaloleni Sub County)
Jurisdiction invoked
Section 29 of the Land Adjudication Act, Cap 284 (decision of the Minister final); supervisory jurisdiction only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Onesmus Daniel Masumbuko & others v Augustino Baya Thotho [2019] KEELC 4932 (KLR)", Case Analysis (2019). Memorandum of Appeal dated 6th February 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4932/eng@2019-01-18

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