John Muchiri Ndegwa & another v Yusuf Isaack (Surveyor County Government of Kiambu) & another; Ethics and Anti Corruption Commission (Interested Party) [2021] KEELC 1828 (KLR)

Environment and Land Court

30 September 2021

LGL. Gacheru

2,284 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Kenya's Environment and Land Court dismissed a boundary dispute petition because the landowners skipped the required step of first asking the Land Registrar to fix the boundary.

What this practically means

Executive summary

The Petitioners, asserting that the estate of Samuel Ndegwa Muchiri (deceased) owns Ndumberi/Riabai/849, sued the Land Registrar Kiambu (1st Respondent), the 2nd Respondent (owner of the adjoining Ndumberi/Riabai/7320) and the Ethics and Anti-Corruption Commission (Interested Party). They sought declarations, certiorari and prohibition to quash and halt the 1st Respondent's purported boundary adjudication, an injunction protecting the existing boundary features, an order compelling the EACC to investigate the 1st Respondent for abuse of office, and an order for supply of documents. The 2nd Respondent averred the boundary merely required alignment; the 1st Respondent and the Interested Party filed Grounds of Opposition denying any abuse of office or infringement. The Court framed two issues: its jurisdiction over judicial review prayers, and entitlement to the orders. It held that under Article 162(2)(b) and Section 13(7) of the Environment and Land Court Act, it may grant prerogative orders and thus has jurisdiction over land-related judicial review. However, on the merits, the Petitioners failed to exhaust the statutory remedy under Section 19 of the Land Registration Act, never having applied to the Land Registrar to fix the boundary, and did not prove their case; the Interested Party was also not a necessary party. Relying on the exhaustion doctrine, the Court dismissed the entire Petition with no orders as to costs.

Key legal issues

Jurisdiction of the ELC over judicial review prayers in a land boundary dispute

Holding

The Court has jurisdiction because Section 13(7) of the ELC Act empowers it to grant prerogative orders

Reasoning

Article 162(2)(b) establishes the ELC for land disputes; Section 13 confers original and appellate jurisdiction including boundary disputes; Section 13(7) permits the Court to grant any just relief including prerogative orders, which are the orders of judicial review. Hence certiorari and prohibition relating to boundary adjudication fall within the Court's competence.

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Whether the Petitioners were entitled to the orders sought

Holding

No; they failed to exhaust statutory remedies under Section 19 of the Land Registration Act and did not prove their case

Reasoning

The Petitioners did not demonstrate that the adjudication proceeded, nor that they applied to the Land Registrar to fix the boundary and were neglected. The Land Registrar has an obligation under Section 19 to ascertain and fix boundaries on application. Having alternative statutory avenues, they came to court prematurely; constitutional relief in such circumstances is an abuse of process.

p. 4

Legal principles established

The Environment and Land Court has jurisdiction to deal with judicial review matters relating to land, especially boundary disputes, by virtue of Section 13(7) of the Environment and Land Court Act permitting prerogative orders
Where alternative statutory remedies exist, parties must exhaust them before seeking constitutional or judicial review relief

Court orders

1.The Petition dated 7th July 2020 is dismissed entirely with no orders as to costs

Authorities

Legislation

Constitution of KenyaArticles 35(1), 162(2)(b), 162(3), 79
Environment and Land Court Act, No. 19 of 2011Section 13, Section 13(7)
Land Registration ActSection 19
Anti-Corruption and Economic Crimes ActSections 25, 45(1)(d)
Ethics and Anti-Corruption Commission ActSection 3
Right to Information ActSections 4 and 5

Cases cited (7)

Willis Ocholla v Mary Ndege
(2016) eKLR
Anarita Karimi Njeru v Republic (No.1)
(1976-80) 1 KLR
The Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
1989 KLR 1
Grain Bulk Handlers Ltd v J.B. Maina & Co. Ltd & 2 Others
(2006) eKLR
Damian Belfonte v The Attorney General of Trinidad and Tobago
C.A 84 of 2004
Republic v National Environment Management Authority
[2011] eKLR
R v Birmingham City Council, ex parte Ferrero Ltd

Jurisdiction invoked: Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Muchiri Ndegwa & another v Yusuf Isaack (Surveyor County Government of Kiambu) & another; Ethics and Anti Corruption Commission (Interested Party) [2021] KEELC 1828 (KLR)", Case Analysis (2021). Petition dated 7th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1828/eng@2021-09-30

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