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ELCStruck OutNot stated in the judgment as provided· [2021] KEELC 646 (KLR)

Benard Nyamanya Mogaka v National Land Commission & 4 others [2021] KEELC 646 (KLR)

Environment and Land Court
25 November 2021
JOJ.M. Onyango
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, suing as chairman of several communities in Central Ward of Kisii County and in public interest, petitioned for a declaration that the alienation of land parcels KISII MUNICIPALITY/BLOCK 3/491 and 492 and their transfer to the 5th and 6th Respondents was null and void, and that the letters of allotment be revoked. He contended the land was public land allocated for the construction of Oresi Hospital, that the National Land Commission (1st Respondent) had wrongly upheld the 5th Respondent's ownership in a decision dated 28th April 2017 without adequate inquiry, and that the 6th Respondent's acquisition breached the Land Registration Act. The 5th and 6th Respondents raised a preliminary objection attacking the court's jurisdiction, pleading res judicata, mootness, disclosure of no reasonable cause of action and abuse of process, and invoking section 14 of the National Land Commission Act read with Article 67 of the Constitution. The court framed two issues: its jurisdiction, and whether the Petition met the constitutional petition threshold. It held that the Commission's unchallenged decision could only be attacked by judicial review, invoking the doctrine of avoidance against interfering with constitutionally mandated bodies. On the second issue, applying the Anarita Karimi Njeru standard, it found the Petitioner had not demonstrated with clarity and precision how any constitutional article was infringed. The Petition was struck out with each party bearing their own costs. The broader land dispute was not determined on its merits.

Key legal issues

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01

Whether the court had jurisdiction over the Petition given the prior National Land Commission decision

Holding

The court declined to interfere with the unchallenged decision of the National Land Commission dated 28th April 2017; the proper remedy to challenge that decision was judicial review, not a constitutional petition.

Reasoning

It was common ground that the National Land Commission rendered a decision on 28th April 2017 following a complaint, and that decision had not been challenged by judicial review. Applying the doctrine of avoidance, the court held it had no business interfering with a decision of a constitutionally mandated body in the manner proposed by the Petitioner. Any party aggrieved by the decision had to move the judicial review court to quash it and refer the dispute back to the Commission.

p. 3
02

Whether the Petition met the threshold of a constitutional Petition

Holding

The Petition did not meet the Anarita Karimi threshold and was struck out.

Reasoning

Citing Anarita Karimi Njeru v Republic and subsequent authorities, the court held that a petitioner must set out with precision the complaint, the provisions said to be infringed and the manner of infringement, and must prove the violation. Although the Petitioner mentioned various constitutional articles in the heading of the Petition, he did not demonstrate with clarity and precision how any article was violated, so no infringement could be ascertained.

p. 4

Legal principles established

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  • A petitioner seeking constitutional redress must set out with reasonable precision the complaint, the constitutional provisions said to be infringed, and the manner of infringement
  • A decision of the National Land Commission under section 14 of the National Land Commission Act that has not been challenged can only be attacked by way of judicial review, not through a constitutional petition
  • Courts should apply the doctrine of avoidance and not interfere with or direct constitutionally mandated bodies on how to carry out their duties

Court orders

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  1. 1.The Petition is struck out for failing to meet the threshold of a constitutional petition
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 67
  • National Land Commission Act, 2012Section 14
  • Land Registration ActSection 9(2)(b)(3)
  • Evidence Act, Cap 80Section 107(1)

Cases cited (4)

  • Anarita Karemi -vs- Republic
    1976-1980 KLR
  • Anarita Karimi Njeru –vs- Republic
    [1979] eKLR
  • Ostenah Ogero Taracha v Ethics & Anti-Corruption Commission & Attorney General
    [2017] eKLR
  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition jurisdiction of the Environment and Land Court)

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, "Benard Nyamanya Mogaka v National Land Commission & 4 others [2021] KEELC 646 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/646/eng@2021-11-25

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