Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Meru ELC Petition; rulings referenced include Petition 16 of 2016, Petition 6 of 2019, Petition 2 of 2019)· [2020] KEELC 3492 (KLR)

Johnson Mbaabu Mburugu & another v Mathiu Nabea & 9 others [2020] KEELC 3492 (KLR)

Environment and Land Court
26 February 2020
LMLucy N. Mbugua
6,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Meru ruled that challenges to how a land adjudication section was created belong in court, not adjudication committees.

What this practically means

#

Executive summary

#
The 1st to 5th and 7th respondents raised a preliminary objection dated 18/12/2018 against the petitioners' constitutional petition, on three limbs: lack of jurisdiction for failure to exhaust remedies under the Land Consolidation Act (Cap 283) and Land Adjudication Act (Cap 284); want of consent under Section 8(2) of Cap 283 and Section 30(1) of Cap 284; and want of specificity of alleged violations. The petitioners, claiming to be registered owners of Land Parcels 1079 and 5165 in the former Ruiri Rwarera Adjudication Section, allege that the 9th respondent arbitrarily created Mbwaa 1 Adjudication Section on 13/2/2016, depriving them of their land. The 9th and 10th respondents (the State) opposed the preliminary objection. Relying on the Mukisa Biscuit test, the court framed three issues. On jurisdiction, it held that although adjudication statutes provide dispute-resolution mechanisms, this dispute goes beyond ascertainment of rights and challenges the legality of the creation of the new adjudication section pursuant to a Court of Appeal consent order, the applicable legal regime is unclear, related petitions are pending, and the State itself opposes the objection; the cited authorities were distinguishable. On consent, following Muthaara Njuri Ncheke and Republic v Musanka Ole Runkes Tarakwa, the court held that a suit questioning the adjudication process rather than interests in land requires no consent. The objection was dismissed in its entirety, with each party bearing their own costs, and house-keeping directions were given on file management and the 9th and 10th respondents were directed to clarify whether they had filed a response.

Key legal issues

#
01

Jurisdiction/exhaustion of remedies

Holding

The court has jurisdiction because the dispute goes beyond ascertainment of rights and challenges the legality of the creation of the Mbwaa 1 Adjudication Section; the preliminary objection fails on this point

Reasoning

The petition questions the interpretation and implementation of a Court of Appeal consent order that created Mbwaa 1 Adjudication Section, the applicable legal regime (Cap 283 vs Cap 284) is unclear, related petitions are pending, and the State respondents oppose the objection. The dispute thus does not fit within the statutory adjudication dispute-resolution mechanisms, distinguishing it from the authorities cited.

p. 7
02

Consent under Section 8(2) Cap 283 and Section 30(1) Cap 284

Holding

Consent was not required because the petition challenges the legitimacy of the adjudication process itself rather than a determination of interests in land

Reasoning

Following Muthaara Njuri Ncheke and Republic v Musanka Ole Runkes Tarakwa, a suit questioning the adjudication process rather than interests in land does not require the adjudication officer's consent. The Reuben Mwongela decision requiring consent is distinguishable because there the claimant sought determination of rights and interests after participating in the process.

p. 8
03

Specificity of alleged violations

Holding

The objection could not succeed on this limb as the alleged violations concern the creation of the new adjudication section and cannot be resolved without evidence and the DLASO's response

Reasoning

While an ownership dispute exists, the deeper issue is the manner of interpretation and implementation of the Court of Appeal consent order creating Mbwaa 1 Adjudication Section. The 9th respondent stands accused of secretly and arbitrarily creating it, and its response has not been traced, so the alleged violations must be tested at a full hearing.

p. 8

Legal principles established

#
  • A suit that questions the legitimacy/process of land adjudication, rather than the determination of interests, is not a suit concerning an interest in land and is properly filed in court without exhausting adjudication dispute mechanisms
  • A preliminary objection must be a pure point of law, not founded on facts requiring ascertainment

Court orders

#
  1. 1.The Preliminary Objection dated 18/12/2018 is dismissed for lack of merit
  2. 2.Each party to bear their own costs of the Preliminary Objection
  3. 3.House-keeping directions: pleadings and the court record to be maintained in the original file as Volume 1, and the remaining documents in a separate file as Volume 2
  4. 4.The 9th and 10th respondents to clarify whether they have filed a response to the petition

Authorities

#

Legislation

  • Land Consolidation ActCap 283, Preamble and Sections 8(2), 11, 13, 14, 17, 19, 26
  • Land Adjudication ActCap 284, Preamble and Sections 5, 6, 7, 8, 10, 11, 12, 13, 17, 18, 20, 21, 22, 26, 29, 29(3), 30(1)
  • Civil Procedure ActCap 21, Sections 2 and 19 (cited as Chapter 21); also cited as Cap 281
  • Constitution of Kenya 2010General
  • The old constitution of KenyaGeneral
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013General
  • Environment and Land Court Act 2011Act No. 19 of 2011
  • Judicature ActCap 8
  • Civil Procedure RulesGeneral

Cases cited (41)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Hassan Ali Joho & another vs Suleiman Said Shahbal & 2 others
    Supreme Court Petition No. 10 of 2013
  • STI Services and Trading International NV vs Walford Meadows Ltd
    Nairobi (Milimani) HCCC No. 1450 of 1999
  • Samson Mbaabu Nkarichia vs Sacinta Kinya Gituma
    Meru HCC No. 37 of 2016 (OS)
  • Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 others
    Supreme Court Civil Misc. Application No. 36 of 2014
  • Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 2 others
    Supreme Court Civil Misc. Application No. 50 of 2014
  • Oraro vs Mbaja
    (2005) 1 KLR
  • Giovanni Papa vs Marafiki Pamoja Homes Company Limited
    Malindi High Court Civil Case No. 26 of 2007
  • Brano M'Mwithiga M'Arauki vs District Land Adjudication & Settlement Officer Tigania East and West & 2 others
    Meru ELC Petition No. 5 of 2014
  • The Hon. Attorney General vs Isaiah Muturi Mucee
    Chuka ELC Petition No. 2 of 2018
  • Methodist Church in Kenya (MCK) Registered Trustees vs The Attorney General & others
    Meru HC Petition No. 4 of 2010
  • Mungai vs Council of Legal Education and others
    (2015) 2 EA
  • Maisha Nishike Limited vs The Permanent Secretary Ministry of Lands & 5 others
    Nairobi HC Petition No. 95 of 2012
  • Waititu vs Independent Electoral and Boundaries Commission (IEBC) and others
    (2014) 2 EA 346
  • Kenya National Highway Authority vs Shalien Masood Mughal & 5 others
    Nairobi Court of Appeal Civil Appeal No. 327 of 2014
  • Vijay Morjaria vs Nansing Madhusingh Darbar & another
    Civil Appeal No. 106 of 2000 (2000) 7349 (CAK)
  • Captain Harry Gandy vs Caspar Air Charters Ltd
    (1955) EACA 139
  • Plotti vs The Acasia Company Ltd
    (1959) EA 248
  • Sarah Wanjiku Mutiso vs Gideon M. Mutiso
    Civil Appeal Nos. 109 of 1986 and 122 of 1986, LLR 4879 (CAK)
  • Amin Mohammed Ali alias Debby vs Fund Account Manager, Laikipia East Constituency Development Fund & 11 others
    Nyeri Court of Appeal Civil Appeal No. 11 of 2016
  • Zipporah Nkoyai vs James Kaberia & 2 others
    Meru ELC Petition No. 2 of 2012
  • Stephen Michuki Kiunga vs Nkuni M'Turuchiu & 2 others
    Meru H.C. Petition No. 2 of 2012
  • Anne Wawuda & 3 others vs Kenya Railways Corporation & another
    (2015) eKLR
  • Speaker of National Assembly vs Karume
    (1992) KLR 425
  • Andrew Lionel Philips and 15 others vs National Direction of Prosecutions
    CC of 2004
  • Abdallah Mangi Mohamed vs Lazarus & 5 others
    (2012) eKLR
  • Nicholas Mugambi & others vs Zachary Baariu & 6 others
    Meru ELC Case No. 167 of 2011
  • Stephen Kungutia & 2 others vs Severina Nchulubi
    Nyeri Court of Appeal Civil Appeal No. 221 of 2010
  • Samuel Kilemi & another vs Festus Gituma Kuthuka
    Meru HCCA No. 306 of 2013
  • Hon. Lady Justice Kalpana H. Rawal vs Judicial Service Commission & others
    Supreme Court Civil Application No. 11 of 2016
  • Owners of Motor Vessel 'Lillian's' vs Caltex Oil Kenya Ltd
    (1989) 1 KLR 1
  • Kauka Maimai Hamisi vs Peris Pesi Tobiko & 2 others
    (2013) eKLR
  • Ransa Co. Ltd & 2 others vs Manca Francesco
    Malindi Court of Appeal Civil Appeal No. 46 of 2014 (2015) eKLR
  • Reuben Mwongela M'Itelekwa vs Paul Kigea Nabea & 2 Others
    Meru ELC Petition No. 6 of 2017
  • Pontrilas Investments Limited vs Central Bank of Kenya & Attorney General of the Republic of Kenya
    EACJ Reference No. 8 of 2017
  • Samuel Kamau & Another v. Kenya Commercial Bank and two others
    Sup. Ct. Civil Application No. 2 of 2011
  • Tobias Achola Osindi & 13 others vs Cypriano Otieno Ogalo & 6 Others
    H.C.C. No. 4 of 2011 Kisii
  • See Kanampiu M'Rimberia vs Julius Kathane and Others
    Meru H.C.C. No. 6 of 2009
  • The Muthaara Njuri Ncheke Council of Elders & Another vs The Committee Ngare Mara/Gambella Adjudication Section & 2 others
    Meru Petition 5 of 2019
  • Mehuba Gelan Kelil & 3 Others vs Abdulkadir Shariff Abdirhim & 4 Others
    [2014] eKLR
  • Republic vs Musanka Ole Runkes Tarakwa Lempaso Ole Kuyioni & 2 others and Joseph Lesalol Lekitio & Others (Exparte Applicants)
    Nakuru ELC Judicial Review Case No. 13 of 2014
Jurisdiction invoked
Original constitutional petition jurisdiction (Article 22/23 as invoked via the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013); no specific provision stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (14)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Johnson Mbaabu Mburugu & another v Mathiu Nabea & 9 others [2020] KEELC 3492 (KLR)", Case Analysis (2020). Not stated in judgment (Meru ELC Petition; rulings referenced include Petition 16 of 2016, Petition 6 of 2019, Petition 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3492/eng@2020-02-26

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