Sande Baya Thoya & another v Arbitration Board & 3 others; Ali Sunday Chea (Interested Party) [2021] KEELC 400 (KLR)
The bottom line
#The court dismissed a land dispute challenge because the applicants skipped the required appeal to the Minister and lacked consent to go to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction over an application for leave to institute judicial review proceedings concerning land in an active adjudication section
The court lacks jurisdiction: the applicants did not exhaust the appeal to the Minister under section 29 of the Land Adjudication Act and did not obtain the Land Adjudication Officer's consent required by section 30, and the adjudication process has not been finalized
The Land Adjudication Board delivered its decision on 13th November 2020, and section 29 allows an aggrieved person 60 days to appeal to the Minister, whose order is final. Section 30 bars courts from entertaining civil proceedings concerning land in an adjudication section until the adjudication register becomes final, save with the written consent of the adjudication officer. No consent was proved, and the pleadings and affidavit show the adjudication process is unfinished. The applicants therefore had to exhaust the statutory appeal mechanism or obtain consent before approaching the court.
Whether procedural lapses in bringing the application by notice of motion rather than ex parte chamber summons render it fatally defective
No - such a lapse is a curable procedural technicality that causes no prejudice to the respondent, applying Article 159(2)(d) of the Constitution
The court noted that although the applicants moved by notice of motion rather than the prescribed ex parte chamber application, Article 159(2)(d) obliges courts to administer justice without undue regard to procedural technicalities. The import of the application and the prayers sought were clear, the interested parties had responded, and no prejudice would ensue. However, this point was overtaken by the jurisdictional objection, which was dispositive of the matter.
Legal principles established
#- A preliminary objection on jurisdiction must be determined first; a court without jurisdiction need not entertain the matter further
- Where an Act of Parliament lays down procedures and appeal mechanisms, these must be followed and exhausted before approaching the court
- Courts do not second-guess compliance with statutory processes but rely on the pleadings and evidence before them; it is either there is a consent or not
Court orders
#- 1.The preliminary objection dated 23rd June 2021 is upheld
- 2.The Notice of Motion dated 25th May 2021 seeking leave to institute judicial review proceedings is dismissed with costs
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and section 9 of the Law Reform Act; matter arising from land adjudication process under the Land Adjudication Act, Cap 284
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sande Baya Thoya & another v Arbitration Board & 3 others; Ali Sunday Chea (Interested Party) [2021] KEELC 400 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/400/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.