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ELCDismissedJudicial Review Motion dated 4.3.2021 (Meru)· [2021] KEELC 1585 (KLR)

Republicv Land Adjudication and Settlement Officer, Tigania Sub-County & another [2021] KEELC 1585 (KLR)

Environment and Land Court
13 October 2021
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The ex-parte applicant sought judicial review orders of certiorari to quash the 1st respondent's decision of 11th August 2020 refusing to issue a consent letter under Section 30 of the Land Adjudication Act Cap 284, and mandamus to compel issuance of that consent. He argued the refusal was unlawful, unreasonable and procedurally unfair, breached his rights to fair administrative action, fair hearing and access to justice, and that he was denied an opportunity to make representations contrary to Section 4(3)(c) of the Fair Administrative Actions Act. The respondents opposed, contending the motion offended Section 30(3) of the Act, that consents issue only when the adjudication register is final, that a conservatory order in Meru ELC Petition No. 5 of 2019 had halted the adjudication process, and that the applicant had an alternative statutory appeal to the Minister. It was not in dispute that the applicant had already appealed to the Minister against the refusal. The court framed the core question as whether the applicant should have awaited the outcome of the internal administrative remedy before resorting to judicial review. Applying Speaker of the National Assembly v Karume, Mutanga Tea & Coffee and Muthinja Kabiru, the court held the statutory internal mechanism carries constitutional imprimatur and must be exhausted first; a party cannot pursue the appeal and judicial review simultaneously. It further held the refusal was not unreasonable given the subsisting conservatory orders, and mandamus could not issue to compel an officer when the same court had barred him by those orders. The notice of motion was dismissed with costs to the respondents.

Key legal issues

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01

Exhaustion of administrative remedies before judicial review

Holding

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

Reasoning

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.

p. 2
02

Fairness of the refusal to issue consent

Holding

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

Reasoning

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.

p. 2
03

Whether Section 30 procedures under the Land Adjudication Act are an impediment to Article 47 rights

Holding

The statutory internal mechanism is constitutionally sanctioned and facilitative, not a hindrance, of fair hearing, access to justice and fair administrative action rights

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 4.3.2021 is dismissed
  2. 2.Costs of the motion awarded to the respondents

Authorities

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Legislation

  • Land Adjudication Act Cap 284Sections 30(1), 30(2), 30(3), 31(c)
  • Fair Administrative Actions ActSection 4(3)(c)
  • Constitution of Kenya 2010Articles 47, 159(2)(c)

Cases cited (8)

  • Muthara Njuri Ncheke Counsel of Elders & Another -vs- Committee of Ngaremara/Gambela Adjudication Section & 2 Others
    (2019) eKLR, Meru ELC Petition No. 5 of 2019
  • Mohammed Ali Baadi and Others -vs- The Attorney General and 11 Others
    (2018) eKLR
  • Republic -vs- Secretary of the Firearms Licensing Board & 2 Others ex-parte Johnstone Muthama
    (2018) eKLR
  • Pastoli -vs- Kabale District Local Government Council & Others
    (2018) 2 EA 300
  • Republic -vs- National Employment Authority & 3 Others exparte Middle East Consultancy Services Limited
    (2018) eKLR
  • Speaker of the National Assembly -vs- James Njenga Karume
    (1992) eKLR
  • Mutanga Tea & Coffee Ltd -vs- Shikara Ltd & Another
    eKLR
  • Geoffrey Muthinja Kabiru & 2 Others -vs- Samuel Munga Henry & 1756 Others
    (2015) eKLR
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

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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, "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.