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ELCDismissedNotice of Motion dated 6.5.2019 in Meru ELC Petition (2020)· [2020] KEELC 3687 (KLR)

Mike Makarena v District Land Adjudication and Settlement Officer Tigania East & 3 others [2020] KEELC 3687 (KLR)

Environment and Land Court of Kenya
16 January 2020
3,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a land adjudication exercise because residents must first use the dispute channels built into the Land Adjudication Act.

What this practically means

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Executive summary

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The petitioner, claiming to represent residents of the Ngaremara/Gambela Adjudication Section in Tigania East, moved the Environment and Land Court at Meru by Notice of Motion dated 6.5.2019 seeking a temporary injunction and conservatory orders to halt the ongoing land adjudication process pending the hearing of his constitutional petition. He alleged that the District Land Adjudication & Settlement Officer was secretly and fraudulently dishing out residents' land, including land belonging to persons living with disabilities, to non-residents, and that the ground was volatile. The 1st-3rd Respondents, through the DLASO Eliab Kamaru, and the 4th Respondent, the County Government of Meru, opposed the application. They showed that the adjudication section was declared by notice dated 11.3.2016 under section 5 of the Land Adjudication Act (Cap 284); that committees and demarcation teams had been appointed with landowners' participation; that over 40,000 parcels had been demarcated and over 1,200 disputes determined, none initiated by the petitioner; and that the Act provides elaborate dispute resolution mechanisms including adjudication committees, objection hearings under section 26 and appeals to the Minister under section 29. The court, citing its own rulings in Meru ELC Petition 7 of 2017 and Petition 5 of 2019 which allowed the adjudication to continue, held that the Land Adjudication Act is a self-contained statute whose quasi-judicial mechanisms had to be exhausted, that the petitioner had not raised his concerns with the relevant committees, and that granting the orders would create conflicting decisions. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Exhaustion of statutory dispute resolution mechanisms under the Land Adjudication Act

Holding

The petitioner was bound to pursue the elaborate mechanisms under sections 13, 26 and 29 of Cap 284 before coming to court; failure to do so weighed against granting relief

Reasoning

Sections 13, 14, 26 and 29 of the Land Adjudication Act provide mechanisms for lodging claims, objection to the adjudication register and appeals to the Minister, with quasi-judicial bodies (adjudication committees, arbitration board, adjudication officer, Minister) empowered to resolve disputes. The petitioner, claiming to hail from Nkaroui village, never appeared before the adjudication team and gave no plausible explanation for bypassing section 13 since the process was still at recording of rights stage.

p. 4
02

Role of the adjudication committee in safeguarding residents' interests

Holding

Committees appointed from area residents act as the eyes and ears of residents, including safeguarding absent persons and persons with disabilities

Reasoning

Under section 6(1) the adjudication officer appoints not less than ten residents as the adjudication committee, and section 20 empowers the committee to adjudicate customary law questions, advise officers, safeguard absent persons and persons under disability, and bring unclaimed interests to officers' attention. The petitioners had not demonstrated they raised their concerns with the relevant committees.

p. 5
03

Prior decisions of the same court on the same adjudication process

Holding

The court's earlier rulings in Meru ELC Petition 7 of 2017 and Petition 5 of 2019 allowed the adjudication process to continue, and granting the orders sought would conflict with those decisions

Reasoning

In Petition 7 of 2017 the court concluded the adjudication process should continue, and in Petition 5 of 2019 the court allowed the process to continue per the notice of 11.3.2016. The orders sought in the present application conflict with those in Petition 5 of 2019, and multiple pending petitions touching on the same area required simultaneous running to avoid confusion and absurdity.

p. 4
04

Whether the 1st Respondent could allocate land to outsiders

Holding

The 1st Respondent has no power to allocate land to non-residents; the adjudication process was being conducted within the law with landowners participating

Reasoning

The DLASO swore that adjudication committees and demarcation teams were duly appointed with participation of land owners, over 40,000 parcels demarcated and 1,500 disputes registered and 1,200 determined - none from the petitioner. The allegation of allocation to foreigners was denied as the 1st respondent lacks such powers, and disputes over demarcation should be handled at objection hearings.

p. 2

Legal principles established

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  • The Land Adjudication Act is a self-contained statute with detailed procedures and its internal dispute resolution mechanisms must be exhausted before invoking the court's jurisdiction
  • A temporary injunction is an equitable, discretionary remedy, never guaranteed as of right

Court orders

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  1. 1.The application dated 6/5/2019 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(1), 23, 24
  • Land Act
  • Environment and Land Act
  • Land Registration ActSections 24, 25, 26
  • Land Adjudication Act (Cap 284)Sections 5, 6(1), 13, 14, 20, 26, 26A, 27, 28, 29

Cases cited (19)

  • Jacob Mantili Kang'anga vs District Land Adjudication & Settlement Officer Igembe District and Anor
    (2016) eKLR, Meru High Court E.L.C Petition No.15 of 2016
  • MRAO versus First American Bank of Kenya Limited and 2 others
    (2003) KLR
  • Kenya Human Rights Commission vs. A.G and Another
    Petition No. 87 of 2017 Nairobi
  • Kiambu County Government and 3 others vs Robert N. Gakuru and others
    (2017) eKLR
  • Speaker of the National Assembly -vs- Karume
    [1992] eKLR
  • Lepore Ole Maito -vs- Letwat Kortom & 2 others
    [2016] eKLR
  • Stanley Lezen Mliwa Vs. Leonard Kapala Makangalu & 2 others
  • Showind Industries Vs. Guardian Bank Limited & Another
    (2002) 1 EA 284
  • Giella vs. Cassman Brown
  • Kenya Breweries Ltd & Another vs Washington O. Okeyo
    [2002] eKLR
  • Locabail International Finance Ltd vs Agro-export and others
    (1986) 1 ALL ER 901
  • Nation Media Group & 2 others vs John Harun Mwau
    [2014] eKLR
  • Silverio Akubu & 4 others vs Charles Baariu Salesio & 3 others
    Meru ELC No. 29 of 2018
  • Kanampiu M'Rimberia vs. Julius Kathane & 3 Others
    MERU H.C.C. NO. 6 OF 2009
  • David Mtawali Kazungu Yaa vs. NLC and 3 Others
    Petition 77 of 2014, Mombasa
  • Tobias Achola Osindi & 13 others vs Cyprianus Otieno Ogalo & 6 others
    H.C.C.C No. 4 of 2011 Kisii
  • Charter House Investment Ltd vs Simon K Sang & 3 others
    (2010) eKLR
  • Meru ELC Petition 7 of 2017
  • Meru ELC Petition 5 of 2019
Jurisdiction invoked
Articles 22, 23, 40 and 165 of the Constitution of Kenya, 2010; Rules 3(1), 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mike Makarena v District Land Adjudication and Settlement Officer Tigania East & 3 others [2020] KEELC 3687 (KLR)", Case Analysis (2020). Notice of Motion dated 6.5.2019 in Meru ELC Petition (2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3687/eng@2020-01-16

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