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ELCDismissedAppeal dated 25/01/2019 re: Land Parcel P/No. 1750 Akirang'ondu 'A' Adjudication Section· [2021] KEELC 2668 (KLR)

Peter Muroki Kamundi v Joshua Mbaabu & 2 others [2021] KEELC 2668 (KLR)

Environment and Land Court
7 July 2021
2,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a landowner's appeal, confirming that disputes over adjudicated land must first go through the Land Adjudication Act process, not the courts.

What this practically means

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Executive summary

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The appellant, who was the plaintiff in the lower court, sued seeking a declaration that he is the lawful owner of land parcel No. 1750 Akirang'ondu 'A' Adjudication Section and cancellation of its transfer. He claimed to have purchased 0.51 acres from Mwokairiama M'Mucheke in October 1999 and to have been in open possession since. The 1st respondent, son of the original owner of the parent parcel, contended that 0.50 acres had been hived off his inherited 8.50 acres without his knowledge and that objection proceedings before the land adjudication officer (Objection No. 2889) had been determined in his favour in 2008. On 28/12/2018 the trial magistrate dismissed the suit, holding the appellant should have appealed under the Land Adjudication Act. On appeal to the Environment and Land Court at Meru, Lucy N. Mbugua, ELC J, restated the first appellate court's duty under Selle v Associated Motor Boat Co Ltd, then considered jurisdiction. Applying the Supreme Court's position in Samuel Kamau v Kenya Commercial Bank and prior ELC decisions, she held that the Land Adjudication Act (Cap 284), sections 26, 27 and 29, provides the exclusive dispute resolution mechanism for grievances during adjudication, and that the decision of the Minister's appeal is final. The court held it could not examine the DLASO's mandate or determine inheritance issues in its appellate forum, found the trial magistrate correct, dismissed the appeal with costs to the 1st respondent. Judgment was delivered electronically under COVID-19 practice directions, with the parties deemed to have waived Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Jurisdiction of the court to entertain a suit challenging a decision in land adjudication objection proceedings

Holding

The court has no jurisdiction; the appellant should have pursued the appeal mechanisms under sections 26 and 29 of the Land Adjudication Act, and recourse lies with the Minister

Reasoning

The Land Adjudication Act and Land Consolidation Act provide elaborate dispute resolution mechanisms for grievances arising during adjudication, from declaration up to close of the register. Objection case No. 2889 was determined in the 1st respondent's favour, and the appellant's remedy was an appeal under the Act rather than a fresh suit. The trial magistrate therefore correctly found that the appellant took the wrong route.

p. 3
02

First appellate court's duty on evidence

Holding

The court must evaluate the evidence and draw its own conclusions while bearing in mind it neither saw nor heard the witnesses

Reasoning

Relying on Selle & Another v Associated Motor Boat Company Ltd, the court restated that an appeal by way of retrial obliges the appellate court to reconsider and evaluate the evidence itself, making due allowance for not having seen or heard the witnesses, and not being bound by trial findings where those findings failed to account for material circumstances.

p. 2

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation or both and it cannot arrogate to itself jurisdiction exceeding that conferred by law
  • Where a statutory mechanism exists for resolution of a dispute over entitlement to property, that statutory procedure must be utilized
  • Parties must exhaust all available remedies and follow the laid-down dispute resolution mechanisms, in this case under the Land Adjudication Act or the Land Consolidation Act
  • A first appellate court must evaluate, assess and analyze the record and make its own determination while making due allowance for not having heard the witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the 1st respondent

Authorities

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Legislation

  • Land Adjudication Actsections 26 and 29
  • Land Adjudication Act (Cap 284 of the Laws of Kenya)sections 26 and 27
  • Land Consolidation Act
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Selle & Another vs. Associated Motor Board Company Ltd
    [1968] EA 123
  • R vs. District Land Adjudication officer, Transmara District, Samson Kiserian Kilerai
    (2021) eKLR
  • William Mulura Kairiba vs. Samuel Nkari & 2 Others
    (2018) eKLR
  • Johnson Mbaabu Mburugu & another v Mathiu Nabea & 9 others
    [2020] eKLR
  • Samuel Kamau & Another v. Kenya Commercial Bank and two others
    Sup. Ct. Civil Application No. 2 of 2011
  • Abdullah Mangi Mohamed v Lazarus Beja & 5 Others
    [2012] 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
  • Kanampiu M'Rimberia v Julius Kathane & 3 others
    [2019] eKLR
On appeal from
Chief Magistrate's Court
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land disputes; first appellate court duty

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, "Peter Muroki Kamundi v Joshua Mbaabu & 2 others [2021] KEELC 2668 (KLR)", Case Analysis (2021). Appeal dated 25/01/2019 re: Land Parcel P/No. 1750 Akirang'ondu 'A' Adjudication Section. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2668/eng@2021-07-07

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