Republicv Land Adjudication and Settlement Officer, Tigania Sub-County & another [2021] KEELC 1585 (KLR)
The bottom line
#The court dismissed a landowner's judicial review case because he had to first complete his statutory appeal to the Minister before going to court.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of administrative remedies before judicial review
Availability and exercise of an internal statutory appeal (to the Minister) bars resort to judicial review until its outcome; the applicant ought to have awaited the outcome of his appeal
The court held the 1st respondent's act was an administrative decision with a statutory administrative remedy which the applicant exercised but did not await. Relying on Speaker of the National Assembly v Karume, Mutanga Tea and Muthinja Kabiru, the court held the exhaustion doctrine is constitutionally grounded in Article 159(2)(c) and postpones judicial consideration until internal mechanisms are exhausted.
Fairness of the refusal to issue consent
The refusal was not unreasonable, illogical or unfair since one of the reasons - subsisting conservatory orders in Meru ELC Petition No. 5 of 2019 halting the adjudication - was undisputed
The court found the reasons given for declining consent were rational because the adjudication process had been halted by conservatory orders issued by the same court. Compelling the officer to issue consent while those orders stand would offend good order and the spirit of the Constitution.
Whether Section 30 procedures under the Land Adjudication Act are an impediment to Article 47 rights
The statutory internal mechanism is constitutionally sanctioned and facilitative, not a hindrance, of fair hearing, access to justice and fair administrative action rights
The court reasoned the adjudication process is aimed at ensuring Kenyans have ascertainment of land rights and interests in an orderly and timely manner. The applicant also had an option under the Fair Administrative Actions Act, which itself mandates exhaustion of internal mechanisms before going to court.
Legal principles established
#- Where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, an aggrieved party must exhaust that mechanism before invoking the inherent jurisdiction of the High Court
- A party who has exercised a statutory appellate remedy cannot simultaneously pursue judicial review without awaiting the outcome; he cannot have it both ways
- The internal mechanism in the Land Adjudication Act bears constitutional imprimatur and does not hinder rights to fair hearing, access to justice and fair administrative action
Court orders
#- 1.The notice of motion dated 4.3.2021 is dismissed
- 2.Costs of the motion awarded to the respondents
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Article 47 of the Constitution and the Fair Administrative Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republicv Land Adjudication and Settlement Officer, Tigania Sub-County & another [2021] KEELC 1585 (KLR)", Case Analysis (2021). Judicial Review Motion dated 4.3.2021 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1585/eng@2021-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.