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ELCDismissedE.L.C. Petition No. 54 of 2015 (Formerly H.C. Pet 4 of 2011)· [2020] KEELC 2068 (KLR)

Francis Musyoki Makenzi & 61 Others v Director of Land Adjudication & Settlement & 2 others;Njiru Cimba & 65 Others & 26 others [2020] KEELC 2068 (KLR)

Environment and Land Court
4 June 2020
YAY.M. Angima
4,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a community land petition, ruling that land adjudication disputes must go through the statutory objection process, not constitutional petitions.

What this practically means

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Executive summary

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Sixty-two Petitioners, claiming to be residents and occupants of land in Karaba, Wachoro and Riakanau Adjudication Sections in Mbeere South, petitioned under the Constitution and the UN Declaration on the Rights of Indigenous Peoples, seeking conservation orders, declarations of beneficial ownership and community land under native title (Article 63), cancellation of titles issued to interested parties, an order compelling survey and issuance of title deeds, exemplary damages and costs. They alleged that the 1978/1980 land adjudication allocated their ancestral land to strangers while they remained in occupation. The Respondents, through a replying affidavit, maintained that the suit land was trust land vested in the defunct Embu County Council, that adjudication was conducted openly and lawfully under the Land Adjudication Act with objection mechanisms, that objections were still pending, and that the petition raised no constitutional issues. The two sets of Interested Parties, said to hold titles over some parcels, filed no response. The court framed five issues. It found the Petitioners had failed to demonstrate that they were indigenous people, noting no evidence of historical continuity with pre-colonial societies or distinctive culture, and that UNDRIP does not apply to Kenya since it had not been signed and ratified. It further held that the grievances about adjudication irregularities were not constitutional issues; the statutory objection and appeal machinery under Sections 26 and 29 of the Land Adjudication Act ought to have been exhausted. Consequently, no violation of fundamental rights was demonstrated and none of the reliefs could issue. The petition was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether the Petitioners are indigenous people within the meaning of UNDRIP

Holding

They are not; no evidence of indigenous attributes was tendered

Reasoning

Neither the Constitution nor UNDRIP defines indigenous people, so the court resorted to descriptions from Wikipedia, the World Bank and the UN Permanent Forum, which stress self-identification, historical continuity with pre-colonial societies, distinct culture and strong links to territory. The Petitioners offered only bare allegations that their forefathers occupied the land since time immemorial, with no evidence of distinctive culture, language or socio-economic systems tied to the suit properties.

p. 4
02

Whether UNDRIP applies to the Petitioners

Holding

It does not, as Kenya has not signed and ratified it

Reasoning

Article 2(6) of the Constitution makes applicable only international instruments Kenya has signed and ratified. The Petitioners did not adequately address applicability, and no evidence was tendered that Kenya ratified UNDRIP; the court's own search of the Ministry of Foreign Affairs website did not reveal ratification.

p. 5
03

Whether the petition raises constitutional issues

Holding

It does not; grievances about land adjudication irregularities belong to the statutory objection and appeal machinery

Reasoning

The Petitioners did not challenge the constitutionality of the Land Adjudication Act. The Land Adjudication Officer had herself identified irregularities in allocations, but Parliament provided an elaborate mechanism: objections to the Adjudication Officer under Section 26 and appeals to the Minister under Section 29, both of which the Petitioners should have pursued. Authorities establish that where a specific procedure exists it must be strictly followed, and the Constitution is not a general substitute for normal administrative remedies.

p. 5
04

Whether the Petitioners demonstrated violation of fundamental rights

Holding

They did not; a petition founded on non-existent constitutional issues cannot demonstrate violations

Reasoning

Having found no constitutional issues were raised, the court held that violations of fundamental rights could not be demonstrated in relation to non-existent constitutional issues. The Petitioners were attempting to circumvent the elaborate procedures for land adjudication disputes by masking the dispute as a constitutional issue.

p. 6
05

Entitlement to reliefs and costs

Holding

No relief granted; each party to bear own costs given the pending adjudication process

Reasoning

Since the Petitioners failed on indigenous status, applicability of UNDRIP, constitutional issues and proof of violation, none of the reliefs could issue. On costs, although costs follow the event under Section 27 of the Civil Procedure Act, the court considered that the adjudication process was still unconcluded and directed that each party bear its own costs.

p. 7

Legal principles established

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  • Where the Constitution or Parliament has provided a mechanism for redress of certain grievances, that mechanism must be strictly followed and departure permitted only in exceptional circumstances
  • Not every irregularity or violation of the law in public administration gives rise to a constitutional issue; the Constitution is not a general substitute for normal procedures for judicial control of administrative action
  • Courts should not usurp the role of the administrator by deciding how land and national resources are allocated between competing claims
  • Under Article 2(6) of the Constitution only international treaties signed and ratified by Kenya apply; UNDRIP has not been ratified by Kenya

Court orders

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  1. 1.The further amended petition filed on 1st April 2019 is dismissed in its entirety
  2. 2.Each party shall bear his own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(5), 2(6), 19, 20, 21, 22(1),(2),(4), 23, 24, 28, 29(C), 40, 43(B), 47, 61, 63(1),(2), 65
  • United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)Articles 1, 8(2), 9, 10, 18, 26, 33, 37, 42, 43, 46
  • Land Adjudication Act (Cap. 284)Sections 3(1), 26, 29(1)
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (12)

  • Harrikisoon V Attorney General [1979] 3 WLR 63
    [1979] 3 WLR 63
  • Rodgers Mwema Nzioka V Attorney General and Others [2006] eKLR
    [2006] eKLR
  • Peter Muturi Njuguna V Kenya Wildlife Service [2017] eKLR
    [2017] eKLR
  • The Speaker of the National Assembly -vs- Karume [2008] 1 KLR 426 (EP)
    [2008] 1 KLR 426 (EP)
  • Kimani Wanyoike -vs- Electoral Commission Civil Appeal No. 213 of 1995 (UR)
    Civil Appeal No. 213 of 1995 (UR)
  • Kenya Bus Service Ltd & 2 others V Attorney General [2005] 1KLR 787
    [2005] 1 KLR 787
  • Harriksoon V Attorney General of Trinidad and Tobago [1970] 3WLR 62
    [1970] 3 WLR 62
  • Four Farms V Agricultural Finance Corporation [2014] eKLR
    [2014] eKLR
  • Re-Application by Bahader [1986] LRC (Const) 297
    [1986] LRC (Const) 297
  • Lucy Mirigo & 550 Others V Minister for Lands & 4 Others [2014] eKLR
    [2014] eKLR
  • R – v- Lancashire County Council Ex p Gayer (1980) 1 WLR 1024
    (1980) 1 WLR 1024
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] EA 287
    [1967] EA 287
Jurisdiction invoked
Articles 19, 20, 21, 22(1), (2), (4), 23, 24, 28, 29(C), 40, 43(B) & 65 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Francis Musyoki Makenzi & 61 Others v Director of Land Adjudication & Settlement & 2 others;Njiru Cimba & 65 Others & 26 others [2020] KEELC 2068 (KLR)", Case Analysis (2020). E.L.C. Petition No. 54 of 2015 (Formerly H.C. Pet 4 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2068/eng@2020-06-04

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