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ELCStruck OutNotice of Preliminary Objection dated 15th December, 2020 in Notice of Motion dated 23rd September, 2020· [2021] KEELC 2091 (KLR)

Francis Manthi Kitobe v County Surveyor Makueni County; Tabitha Maka & 2 others (Interested parties) [2021] KEELC 2091 (KLR)

Environment and Land Court
9 September 2021
CMC.G. MBOGO
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot file a land dispute in court while the land adjudication process is still ongoing—you must first get the Land Adjudication Officer's written consent.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Hon. C.G. Mbogo, Judge) determines a Notice of Preliminary Objection dated 15th December, 2020, by which the Respondent sought dismissal of the Applicant's Notice of Motion dated 23rd September, 2020. The objection was founded on sections 8 of the Land Consolidation Act (Cap 283) and 30 of the Land Adjudication Act (Cap 284), on the ground that the Kyamuoso Adjudication Section had not been finalized and that the mandatory consent of the Land Adjudication Officer had neither been sought nor obtained. The Respondent was the only party to file submissions, relying on three authorities: William Mutuura Kairiba v Samuel Nkari & 2 Others [2018] eKLR, Reuben Mwongera M'itelekwa v Paul Kigea Nabea [2014] eKLR, and Musana Ole Pere & Another v District Land Adjudication Section and Settlement Officer – Narok South & 23 Others (2019) eKLR, all stressing the mandatory nature of the consent requirement and the prohibition on courts entertaining disputes in unfinalized adjudication sections. The court set out the relevant statutory provisions, including the appeal mechanisms to the Minister under sections 26, 29 and 30(3) of the Land Adjudication Act. It held that the written consent of a Land Adjudication Officer is a mandatory statutory requirement that cannot be circumvented; there was nothing on record showing the Applicant sought or obtained consent, nor that he exhausted the statutory appeal procedure. Since the adjudication register had not become final, the court was prohibited from entertaining the matter. The preliminary objection was upheld and the Notice of Motion dismissed with costs to the Respondent.

Key legal issues

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01

Whether the court has jurisdiction to entertain the Applicant's application absent consent of the Land Adjudication Officer and finalization of the adjudication register

Holding

The court lacks jurisdiction; the application is barred by section 8 of the Land Consolidation Act and section 30(1) of the Land Adjudication Act

Reasoning

The court examined sections 8, 26, 29 and 30 of the Land Adjudication Act and section 8 of the Land Consolidation Act. It found nothing on record showing the Applicant sought or obtained the Adjudication Officer's consent, nor that he exhausted the appeal procedure to the Minister following any refusal. Since the adjudication register had not become final, courts are mandatorily prohibited from entertaining the matter.

p. 3
02

Whether the requirement of consent is a mere technicality

Holding

It is a mandatory statutory requirement, not a procedural technicality

Reasoning

Relying on the statutory text and the authority of Reuben Mwongera M'itelekwa v Paul Kigea Nabea, the court treated the consent requirement as a jurisdictional bar, not a curable technicality, and noted the further requirement of exhausting the appeals to the Minister under sections 26, 29 and 30(3) of the Land Adjudication Act.

p. 2

Legal principles established

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  • Written consent of the Land Adjudication Officer is a mandatory statutory requirement which cannot be circumvented, and courts are prohibited from entertaining proceedings concerning land in an adjudication section whose register has not become final

Court orders

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  1. 1.The Preliminary Objection dated 15th December, 2020 is upheld as having merits
  2. 2.The Notice of Motion application dated 23rd September, 2020 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Land Consolidation ActSection 8
  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSection 30(3)
  • Land Adjudication ActSection 26(1)
  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 29(3)

Cases cited (3)

  • William Mutuura Kairiba -Vs- Samuel Nkari & 2 Others
    [2018] eKLR
  • Reuben Mwongera M'itelekwa -Vs- Paul Kigea Nabea
    [2014] eKLR
  • Musana Ole Pere & Another -Vs- District Land Adjudication Section and Settlement Officer – Narok South & 23 Others; Paramalai Pere & Another (Interested Party)
    (2019) eKLR
Jurisdiction invoked
Land Adjudication Act, Cap 284, section 30(1); Land Consolidation Act, Cap 283, section 8

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, "Francis Manthi Kitobe v County Surveyor Makueni County; Tabitha Maka & 2 others (Interested parties) [2021] KEELC 2091 (KLR)", Case Analysis (2021). Notice of Preliminary Objection dated 15th December, 2020 in Notice of Motion dated 23rd September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2091/eng@2021-09-09

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