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ELCAllowedTigania PMCC No. 25 OF 2014 (Appeal)· [2021] KEELC 783 (KLR)

Benedict Kilemi M’ithinyai v Joseph Ngituyu & another [2021] KEELC 783 (KLR)

Environment and Land Court
24 November 2021
CNC.K. NZILI
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you can still sue over land adjudication wrongdoing, especially where you hold a valid consent to sue.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru from a ruling of Hon. G. Sogomo (S.R.M.) delivered on 1 November 2018 in Tigania PMCC No. 25 of 2014, striking out the appellant's suit for failure to exhaust internal remedies under Sections 25 and 26(3) of the Land Consolidation Act Cap 183. The appellant, holding a consent from the District Land Adjudication Officer dated 24 December 2012, had sued to restrain the respondents from entering and destroying vegetation on Parcels Nos. 3625 and 142, Antuamburi Adjudication Section. The respondents denied the claim, asserting they lawfully purchased their portions in 1986 and 1991 and had taken possession and developed them. A scene visit confirmed destruction of trees. The appellant argued that appeal to the Minister is not mandatory and that striking out was drastic and condemned him unheard; the respondents argued the appellant's objections had been heard and dismissed and that only the adjudication process could determine ownership. C.K. Nzili (ELC Judge) framed the question as whether Section 26 ousts the court's supervisory jurisdiction. Relying on Tobias Achoka Osindi, the court affirmed that ascertainment of rights belongs to the adjudication officer with the court's role supervisory, but held the trial court took too narrow a view, that adjudication statutes must be read with the Constitution, and that parties who flout the process cannot invoke lack of jurisdiction. The appeal was allowed with costs to the appellant.

Key legal issues

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01

Exhaustion of internal remedies under the Land Consolidation Act

Holding

The trial court took too narrow a view; exhaustion cannot bar a party with a deserving and urgent complaint where the statutory notice was not published and the internal machinery cannot grant restraining orders

Reasoning

The court held Parliament gave adjudication officers power to issue consent to sue precisely because court intervention would sometimes be inevitable. Where the section 25 notice was not published and the Minister or adjudication officer cannot issue restraining orders, denying court access would defeat constitutional rights to fair hearing and access to justice.

p. 2
02

Division of powers between courts and adjudication officers

Holding

Ascertainment and determination of rights and interests belong to the adjudication officer; the court's role is supervisory over illegalities

Reasoning

Following Tobias Achoka Osindi, the court affirmed that determination of rights in adjudication areas rests with the adjudication officer, but the court retains power to supervise an adjudication officer acting outside the law, so jurisdiction was not wholly ousted.

p. 2

Legal principles established

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  • Courts cannot take over the powers of adjudication officers to ascertain and determine rights and interests over land within an adjudication area, but may supervise complaints against an adjudication officer acting outside the law
  • Adjudication statutes must be read together with the Constitution, including rights to fair administrative action and access to justice
  • Parties who cause adjudication to be conducted contrary to law cannot rely on lack of jurisdiction to bar court supervision

Court orders

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  1. 1.The appeal is allowed
  2. 2.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Land Consolidation ActSections 25, 26, 26(3)
  • Constitution of Kenya 2010rights to fair hearing, fair administrative action and access to justice
  • Magistrates Courts Actamendment widening access to justice on land disputes
  • Land Adjudication Actread together with the Constitution
  • National Land Policy 2016policy framework

Cases cited (9)

  • William Onginjo Kenga –vs- Eric Mawira
    [2000] eKLR
  • Peter Ndirangu Muchemi –vs- Asiemo Ndatho Marenge
    [2018] eKLR
  • Nicholas Tukei –vs- Chepochepkatug Loyeruk & 2 Others
    eKLR
  • Julius Ntuiti –vs- Mwirichia Kaumbuthu
    [2014] eKLR
  • Omar Saleh Said –vs- Kilindini Warehouses (K) Ltd & Another
    [2013] eKLR
  • Harrison Wanjohi Wambugu –vs- Felista Wairimu Chege & Another
    [2013] eKLR
  • Margaret Mukomugaa –vs- Samuel Kingirwa Amuru & 4 Others
    [2021] eKLR
  • Tobias Achoka Osindi & 13 Others –vs- Cyprian Otieno Ogola & 6 Others
    [2013] eKLR
  • Stephen Kungutia & 2 Others –vs- Severina Nchulubi
    Nyeri Civil Appeal No. 221 of 2020
On appeal from
Principal Magistrate's Court, Tigania
PMCC No. 25 OF 2014
Jurisdiction invoked
First appeal from the magistrates' court; appeal against striking out suit for want of exhaustion of internal remedies under Sections 25 and 26(3) of the Land Consolidation Act Cap 183

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, "Benedict Kilemi M’ithinyai v Joseph Ngituyu & another [2021] KEELC 783 (KLR)", Case Analysis (2021). Tigania PMCC No. 25 OF 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/783/eng@2021-11-24

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