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ELCAllowedMeru ELC Appeal (memorandum of appeal dated 12/02/2020) arising from Tigania PM ELC No. 14 of 2015· [2021] KEELC 2492 (KLR)

Joshua Mithika & another v Kobia M’Twamwari Kangeri & 2 others [2021] KEELC 2492 (KLR)

Environment and Land Court
21 July 2021
LMLucy N. Mbugua
2,759 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Meru revived a land fraud suit struck out over an exhaustion argument that did not actually apply to the plaintiffs.

What this practically means

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Executive summary

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The appellants, as plaintiffs in Tigania PM ELC No. 14 of 2015, sued the respondents claiming a declaration that the transfer of 6.50 acres from land parcel No. 418 Akaiga Adjudication Section was fraudulent, together with cancellation of the transfer and rectification of the register. The respondents raised a preliminary objection invoking sections 26 and 29 of the Land Consolidation Act (Cap 283) and the Land Adjudication Act (Cap 284) and Order 29 of the Civil Procedure Rules, which the trial magistrate upheld on 29 August 2019, striking out the suit with costs. On appeal, the appellants argued the trial court applied the wrong statute, since the dispute fell under Cap 283 which contains no provision for appeal to the Minister, and that fraud had been properly pleaded. The respondents maintained the appellants had lost in objection proceedings before the DLASO and failed to appeal to the Minister within 30 days. Judge Lucy N. Mbugua applied the classic statement on jurisdiction in the M.V. Lillians case and found the appellants were not parties to, nor aggrieved persons in, the objection proceedings, the objector having been M'Twamwari Paul Kangeri, the respondents' deceased father. Fraud was properly pleaded under Order 2 rule 10(1), and non-joinder of land officials was not a ground in the preliminary objection. The trial court erred in applying section 29 of Cap 284 to proceedings conducted under Cap 283. The appeal was allowed, the striking-out decision set aside, and the suit remitted for hearing on merits, with each party bearing their own costs.

Key legal issues

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01

Exhaustion of remedies under the Land Consolidation Act

Holding

The doctrine did not bar the suit because the appellants were not parties to, or aggrieved persons in, the objection proceedings; the objector was M'Twamwari Paul Kangeri, not the appellants

Reasoning

The respondents argued the appellants lost in objection proceedings before the DLASO and should have appealed to the Minister within 30 days. The court examined the record and found the objector was a third party (the respondents' deceased father), so the appellants were not 'aggrieved persons' under section 26 of Cap 283 and the exhaustion argument was false.

p. 3
02

Applicable adjudication statute

Holding

The trial court erred by applying section 29 of the Land Adjudication Act (Cap 284) when the objection proceedings were conducted under the Land Consolidation Act (Cap 283), under which there is no appeal to the Minister

Reasoning

The suit parcel was in Akaiga Adjudication Section and the objection proceedings were conducted under Cap 283. Cap 283 contains no provision for appeal to the Minister (save on compensation), so the trial court's direction that the plaintiffs petition the Minister rested on the wrong statute and was an error of law.

p. 4
03

Fraud pleadings and joinder

Holding

The plaint properly pleaded fraud under Order 2 rule 10(1) of the Civil Procedure Rules, and non-joinder of land officials could not defeat the suit since joinder was not framed in the preliminary objection

Reasoning

Fraud was pleaded in paragraphs 11 and 12 of the plaint. The suit concerned alleged fraudulent transfer of the land, not ascertainment of rights and interests, so the court could entertain it; nor had any impropriety by government officers been alleged to require their joinder.

p. 3

Legal principles established

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  • Jurisdiction is foundational; a court without jurisdiction must down its tools at once
  • Under section 26 of the Land Consolidation Act, the adjudication officer's decision on an objection is final, with no appeal to the Minister except on compensation
  • Not all land disputes emanating from areas under adjudication fall within the statutory dispute resolution mechanisms

Court orders

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  1. 1.The decision of the Honorable Magistrate delivered on 29/08/2019 in Tigania PM ELC No. 14 of 2015 be and is hereby set aside and the matter is to be heard on merits
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Consolidation ActCap 283, sections 21, 25, 26
  • Land Adjudication ActCap 284, section 29(1)
  • Civil Procedure RulesOrder 2 rule 10(1); Order 29

Cases cited (8)

  • Stephen Kungutia & 2 others v Severina Nchulubi
    [2020] eKLR
  • Peter Kimandiu v Land Adjudication Officer Tigania West District & 4 others
    [2016] eKLR
  • Reuben Mwongela M'Itelekwa (suing as the Legal Representative of the estate of M'itelekwa M'Mucheke Naituri alias M'Itelekwa Mucheke) v Paul Kigea Nabea & 2 others
    [2019] eKLR
  • Owners of the Motor Vehicle M.V. Lillians v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Lucy Karauki Kirambia (suing as the legal representative of the estate of Peter Muriungi Kaunga (deceased) v Muthengi M'mwathi Muthigu & 2 others
    [2018] eKLR
  • Stephen Kirimi M'Rinturi v Land Adjudication and Settlements Officer – Igembe District & 3 Others; Peter Kumbu Kimunya & Another (Interested Parties)
    [2020] eKLR
  • Daniel Murungi Mwirabua Anampiu v Jeremiah John alias Jeremia Guantai
    [2019] eKLR
  • Mugambi Nicholas and others v Zachary Baariu & Others
    Meru ELC No. 167 of 2011
On appeal from
Tigania Principal Magistrate's Court (ELC)
Tigania PM ELC No. 14 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Mithika & another v Kobia M’Twamwari Kangeri & 2 others [2021] KEELC 2492 (KLR)", Case Analysis (2021). Meru ELC Appeal (memorandum of appeal dated 12/02/2020) arising from Tigania PM ELC No. 14 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2492/eng@2021-07-21

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