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ELCStruck OutELC Case No. 38 of 2017· [2021] KEELC 1046 (KLR)

Nekapi Ene Lekakeny v Richard Memusi Kurraru & 3 others [2021] KEELC 1046 (KLR)

Environment and Land Court
8 November 2021
MKMohammed N. Kullow
2,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land owner who disagrees with a Minister's adjudication decision must file judicial review in the High Court, not a lawsuit, or lose.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 21 October 2013 seeking declarations that the recording of Plot No. 1477 Kipise Adjudication Section in the name of the 1st defendant was irregular and null and void, declarations that the District Commissioner (2nd defendant) acted in bad faith, failed to consider relevant factors and abused his powers when, by ruling of 6 September 2011 on Appeal No. 9 of 2011, he overturned the Land Adjudication and Settlement Officer's decision of 23 February 2009 and reverted the plot to the 1st defendant; plus an injunction, a prohibition order against the 3rd defendant, general damages, costs and interest. The 1st defendant maintained the register was concluded and finalised in his name and that section 23(d) of the Land Adjudication Act was not contravened; the state defendants filed a blanket denial. The court framed three issues: jurisdiction, tenability of the orders sought, and ownership of the plot. Relying on the Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia, and on section 29(1) of the Land Adjudication Act which renders the Minister's determination final, the court held that the plaintiff's grievance concerned the decision-making process and could only be resolved through judicial review. The plaint was characterised as a judicial review application in disguise, circumventing section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. The court found it had no jurisdiction and struck out the suit with no orders as to costs.

Key legal issues

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01

Whether the ELC has jurisdiction over a plaint challenging the decision-making process of a District Commissioner's appeal determination under the Land Adjudication Act

Holding

The court has no jurisdiction; the challenge can only be mounted through judicial review in the High Court, as the Minister's determination under Section 29(1) is final.

Reasoning

Section 29(1) of the Land Adjudication Act makes the Minister's appeal determination final. Court of Appeal authority confirms such determinations are subject only to judicial review. The plaintiff's grievance targeted the procedure of the decision-making process, a matter for judicial review. Filing by plaint circumvented Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. The court therefore struck out the suit.

p. 3
02

Whether the orders sought in the plaint are tenable

Holding

The declaratory, prohibition and related orders sought have judicial review connotations and can only be granted by a court exercising judicial review jurisdiction.

Reasoning

The court found that prayers (a), (b), (c), (d) and (g) of the plaint were in substance judicial review reliefs. Having held it lacked jurisdiction, the court declined to determine the third issue on ownership as it would be an academic exercise.

p. 3

Legal principles established

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  • A party aggrieved by the Minister's determination under Section 29 of the Land Adjudication Act may challenge it only by way of judicial review and not otherwise.
  • A suit seeking orders that are in substance judicial review reliefs, filed as a plaint, circumvents mandatory provisions of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules and must fail for want of jurisdiction.

Court orders

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  1. 1.The suit be and is hereby struck out with no orders as to costs

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 23(d)
  • Land Adjudication ActSection 26
  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53 Rule 2
  • Legal Notice No. 73 of 25/4/1978

Cases cited (4)

  • Owners of Motor Vessel "Lillian S"
  • Samuel Kamau Macharia -vs- Kenya Commercial Bank & 2 Others
    Civil Appl. No. 2 of 2011
  • Watuku Mutsiemi Watuku & another v Republic & 5 others
    [2018] eKLR
  • Lepore Ole Maito –vs- Letwat Kortom & 2 Others
    [2016] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act; suit challenged finality of a Minister's determination under Section 29(1) of the Land Adjudication Act

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, "Nekapi Ene Lekakeny v Richard Memusi Kurraru & 3 others [2021] KEELC 1046 (KLR)", Case Analysis (2021). ELC Case No. 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1046/eng@2021-11-08

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