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ELCDismissedELC Constitutional Petition dated 21st May 2019· [2020] KEELC 2816 (KLR)

Seraphin Ndagara M’Mwamba v David N. Kanampiu & 5 others [2020] KEELC 2816 (KLR)

Environment and Land Court
5 May 2020
PNP. M. Njoroge
2,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his constitutional challenge because courts will not reward switching courts after losing a case — pick one forum and follow it through.

What this practically means

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Executive summary

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The petitioner brought a constitutional petition before the Environment and Land Court at Chuka complaining that, while his appeal to the Minister against a decision of the Land Adjudication and Settlement Officer in Objection No. 29 was still pending, the respondents excised 7.34 HA from land parcel No. 361 Kathwana Adjudication Section, registered it as Kathwana/1215 on 04/07/2011 and issued a title to the 1st Respondent on 21/01/2013. He sought declarations of violation of articles 27, 40 and 47 of the Constitution, a declaration that the excision and registration were illegal, and cancellation of the registration with reversion of the land. He relied on the proviso to section 28 of the Land Adjudication Act requiring a restriction pending appeal, and on two authorities. The 1st Respondent contended that no appeal to the Minister lies under the Land Consolidation Act, that the petitioner was heard in the adjudication process and in Chuka CMCC No. 13 of 2014 (a trust/fraud suit he lost), and that the petition was an abuse of process. The other respondents did not respond. The court held the petitioner had fully participated in the adjudication and the CMCC proceedings, and that his resort to the pending ministerial appeal and then the petition after losing in the magistrate's court was forum shopping. It found the registration was effected in accordance with established law and that no constitutional rights were violated. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether a constitutional issue arose from the implementation of the adjudication officer's decision pending appeal to the Minister

Holding

No constitutional violation was established; the registration was lawful and the adjudication processes were duly followed

Reasoning

The court perused the proceedings in Chuka CMCC 13 of 2014 and found the petitioner fully and robustly participated and was heard on each occasion he sought to be heard. The petitioner only resorted to the constitutional petition after losing the lower court suit and did not appeal that judgment. The court concluded the registration of the respondent complied with the law and no rights under articles 27, 40 or 47 were infringed.

p. 6
02

Whether the petitioner's earlier suit (Chuka CMCC No. 13 of 2014) and pending appeal to the Minister barred relief

Holding

The petitioner's conduct amounted to forum shopping and the petition was an abuse of process

Reasoning

The petitioner filed the CMCC suit premised on trust and fraud while an appeal to the Minister was pending, treating the appeal as a fallback. Having lost the suit, he filed the petition without appealing the judgment. The court deprecated this tactic and declined to reward it with constitutional relief.

p. 5

Legal principles established

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  • A litigant who has fully participated in earlier proceedings and lost cannot use a pending administrative appeal or a later constitutional petition as a fallback position; forum shopping is deprecated
  • Registration of a party as owner of adjudicated land in accordance with the established adjudication process does not violate constitutional rights to property and fair administrative action

Court orders

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  1. 1.This petition is dismissed.
  2. 2.Costs shall follow the event and are awarded to the respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1)&(2), 40(1), 47(1)&(2)
  • Land Adjudication ActSections 28 (proviso) and 29
  • Land Consolidation ActCap 283

Cases cited (2)

  • DANIEL MWANGOMBE SHUMAA & 3 OTHERS Vs NYAMAWI CHIMENGA NJUNGA & 14 OTHERS
    [MALINDI ELC CONST. PET. NO. 9 OF 2014] eKLR
  • EUTON NJUKI MAKUNGO Vs REPUBLIC & 2 OTHERS
    [NYERI C.A.C.A. NO. 35 OF 2013] eKLR
Jurisdiction invoked
Articles 27(1)&(2), 40(1) and 47(1)&(2) of the Constitution (petition for enforcement of fundamental rights)

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, "Seraphin Ndagara M’Mwamba v David N. Kanampiu & 5 others [2020] KEELC 2816 (KLR)", Case Analysis (2020). ELC Constitutional Petition dated 21st May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2816/eng@2020-05-05

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