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ELCDismissedELC Petition No. 4 of 2017 (Formerly Kisii Pet. No. 32 of 2016)· [2020] KEELC 983 (KLR)

Wanjiru Mburu Koko & 2 others v Mworona Ole Pokare & 2 others [2020] KEELC 983 (KLR)

Environment and Land Court
2 October 2020
MKMohammed Kullow
2,626 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family's challenge to a land title because they skipped the objection hearing and never used the statutory appeal available to them.

What this practically means

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Executive summary

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The petitioners, administrators of the estate of Mburu Mwaura Koko (deceased intestate on 3 January 2005), petitioned the Environment and Land Court at Narok seeking declarations that the 2nd respondent's revocation of the deceased's registration as owner of Plot No. 267 Kojonga Adjudication Section (Narok/Cis Mara/Kojonga/267) violated Articles 40 and 50(1) of the Constitution, plus permanent and mandatory injunctions reinstating the deceased's registration and cancelling the 1st respondent's registration and title. The 1st respondent asserted he was the legitimate owner, that the deceased was his tenant who had clandestinely procured registration in the deceased's name, and that his objection No. 180 before the Land Adjudication Officer was heard and determined in his favour under section 13(3) of the Land Adjudication Act. The 2nd and 3rd respondents produced the adjudication records, objections, decisions and certificates of finality, noting the deceased never appealed. The court framed four issues and held that the 1st respondent acquired title legitimately through the statutory objection process; the petitioners, though served, never attended the objection hearing and failed to pursue the statutory appeal to the Minister under section 30 of the Land Adjudication Act. Applying Dr Joseph Arap Ngok v Justice Moijo Ole Kewa, the court found the petitioners had not discharged the burden of proving fraud. Applying Anne Njoki Kinyanjui v Barclays Bank, it further held the petition did not meet the constitutional petition threshold where alternative remedies (statutory appeal and judicial review) existed and were unexhausted. The petition dated 14/11/2013 was dismissed with costs.

Key legal issues

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01

Whether the 1st respondent acquired title illegally

Holding

Title was acquired legitimately through the objection process under the Land Adjudication Act; petitioners failed to prove fraud

Reasoning

The objection was heard and determined on 15/5/2009 after service of summons on the deceased and family, who never attended. The petitioners had an appeal to the Minister under section 30 of the Land Adjudication Act but failed to pursue it. No material was placed before the court proving fraud or that the 1st respondent was party to fraud, so the indefeasible title under sections 24 and 25 of the Land Registration Act stands.

p. 3
02

Whether the petition met the threshold of a constitutional petition

Holding

It did not; the dispute concerned a quasi-judicial administrative decision challengeable by judicial review or statutory appeal, not a constitutional petition

Reasoning

Citing Anne Njoki Kinyanjui v Barclays Bank, the court held that where a remedy exists under other legislation, the court declines to determine constitutional violation. The decision of the Land Adjudication Officer on objection was quasi-judicial and administrative, challengeable by judicial review, and the petitioners regrettably failed to exercise the appeal to the Minister under section 25 of the Land Adjudication Act.

p. 4

Legal principles established

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  • A registered title is absolute and indefeasible and can only be challenged on grounds of fraud or misrepresentation to which the registered owner is a party
  • Where an alternative remedy exists under other legislation, a court may decline to determine an alleged constitutional violation; a party aggrieved by an adjudication officer's decision must pursue the statutory appeal

Court orders

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  1. 1.The petition dated 14/11/2013 was dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40; Article 40(6); Article 50(1)
  • Land Adjudication ActSection 13(3); section 25; section 30
  • Land Registration ActSections 24 and 25; section 26
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (2)

  • Dr Joseph Arap Ngok vs Justice Moijo Ole Kewa and 5 others
    Nairobi Civil Appeal No. 60 of 1997
  • Anne Njoki Kinyanjui vs Barclays Bank of Kenya Ltd
    (2015) eKLR
Jurisdiction invoked
Article 40 and Article 50(1) of the Constitution of Kenya (constitutional petition under the Environment and Land Court jurisdiction)

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, "Wanjiru Mburu Koko & 2 others v Mworona Ole Pokare & 2 others [2020] KEELC 983 (KLR)", Case Analysis (2020). ELC Petition No. 4 of 2017 (Formerly Kisii Pet. No. 32 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/983/eng@2020-10-02

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