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ELCStruck OutJudicial Review Application by way of Notice of Motion dated 22nd November 2019· [2021] KEELC 3267 (KLR)

Republic v Land Adjudication Office Tuturung Adjudication Section Elgeyo Marakwet & another Ex parte Biyaa Clan [2021] KEELC 3267 (KLR)

Environment and Land Court
19 May 2021
3,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute because the owner skipped the required objection and appeal steps before going to court.

What this practically means

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Executive summary

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The Respondents raised a preliminary objection dated 2nd November 2020 against a judicial review application by way of Notice of Motion dated 22nd November 2019, in which the Ex Parte Applicant sought certiorari to quash the 2nd Respondent's decision of 18th September 2019 and prohibition restraining the 1st Respondent from subdividing and registering new parcel numbers in respect of land parcel 3121. The Respondents argued that the court lacked jurisdiction because the written consent of the adjudication officer required under Section 30(1) of the Land Adjudication Act had not been obtained, that the land fell within an ongoing adjudication process, and that the applicant had failed to exhaust the remedies in Sections 26 and 29 of the Act. The Applicant countered that its jurisdiction derived from Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act, and that the adjudication process had concluded with boundaries set under Section 5. Applying the distinction drawn in Republic v Musanka Ole Runkes Tarakwa between challenges to the adjudication process (no consent required) and challenges to determinations of interests in land (consent required), the court found that the applicant was in substance challenging the decision of the Respondents rather than the decision-making process. The court further found that the applicant had not exhausted the objection and appeal mechanisms in Sections 26 and 29. The preliminary objection was upheld; the judicial review motion was struck out with costs to the Respondents.

Key legal issues

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01

Whether the ELC had jurisdiction absent the consent required under Section 30(1) of the Land Adjudication Act

Holding

The court had no jurisdiction because the judicial review orders sought challenged the decision on the applicant's entitlement to land, not the decision-making process, and no written consent of the adjudication officer was obtained

Reasoning

The court distinguished proceedings questioning the adjudication process (which do not need consent) from those challenging a determination of interests in land (which do). The relief sought - certiorari to quash the adjudication committee's decision and prohibition of subdivision and registration - went directly to the applicant's interest in land parcel 3121 within an ongoing adjudication section. Absent consent, the court was not clothed with jurisdiction.

p. 4
02

Whether the Ex Parte Applicant failed to exhaust the remedies under Sections 26 and 29 of the Land Adjudication Act

Holding

The applicant had not objected under Section 26 or appealed to the Minister under Section 29 before coming to court, and thus approached the court prematurely

Reasoning

Sections 26 and 29 provide an objection process and an appeal to the Minister whose order is final. The applicant offered no evidence of having pursued these avenues. Applying the exhaustion doctrine as stated by the Court of Appeal in Geoffrey Muthinja Kabiru and the Mutanga Tea principle, courts should be fora of last resort where a statute prescribes a specific dispute resolution mechanism.

p. 5
03

Whether the judicial review application was an abuse of the court process

Holding

Yes - the application was premature, filed without the statutory consent and in disregard of the statutory remedies, and was therefore an abuse of process

Reasoning

Having found the action premature and outside the court's jurisdiction, the court concluded that the application was an abuse of process, justifying striking it out on the respondents' preliminary objection with costs.

p. 5

Legal principles established

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  • Except with the written consent of the adjudication officer, no person may institute and no court shall entertain civil proceedings concerning an interest in land in an adjudication section until the adjudication register is final
  • Where a specific dispute resolution mechanism exists outside the courts, it must be exhausted before the jurisdiction of the courts is invoked
  • A suit that questions the process of land adjudication rather than the determination of interests is not one concerning an interest in land and does not require the adjudication officer's consent

Court orders

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  1. 1.The Ex Parte Applicant's Judicial Review Application by way of Notice of Motion dated 22nd November 2019 for certiorari and prohibition orders be and is hereby struck out
  2. 2.Costs to the Respondents
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 26(1)
  • Land Adjudication ActSection 2 (definition of 'interest')
  • Land Adjudication ActSection 5
  • Land Adjudication ActSection 6
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 165(3)(a)
  • Environment and Land Court Act No. 19 of 2011Section 13(2)
  • Registered Land Act (Cap. 300)Section 2 (referred to in definition of interest)

Cases cited (16)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Republic v Musanka Ole Runkes Tarakwa & 5 Others Ex-parte Joseph Lesalol Lekitio & Others
    [2015] 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
  • Musana Ole Pere & Another v District Land Adjudication Section and Settlement Officer-Narok South & 23 Others; Paramalai Pere & Another (Interested Party)
    [2019] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Meru ELC Petition 21 of 2012
  • Stephen Michuki Kiunga vs. Nkuni M' Ruchiu and 2 Others
  • Republic v District Land Adjudication and Settlement Officer Kilifi District & 2 Others Ex parte Kilifi Munga Alfred & Another
    [2013] eKLR
  • William Mutuura Kairiba v Samuel Nkari & 2 Others
    [2018] eKLR
  • Thomas Kinyori Hussein & 3 Others v Mokha Mghanga & 2 Others
    [2018] eKLR
  • Benjamin Okwaro Estika v Christopher Antony Ouko & Another
    [2013] eKLR
  • Kilusu Julius Sile & 60 Others v Chairperson, Oloirien Adjudication Section 'B' Committee & 3 Others
    [2016] eKLR
  • John Masiantet Saeni v Daniel Aramat Lolungiro & 3 Others
    [2017] eKLR
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001
  • Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act No. 19 of 2011; jurisdiction defeated by Section 30(1) of the Land Adjudication 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, "Republic v Land Adjudication Office Tuturung Adjudication Section Elgeyo Marakwet & another Ex parte Biyaa Clan [2021] KEELC 3267 (KLR)", Case Analysis (2021). Judicial Review Application by way of Notice of Motion dated 22nd November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3267/eng@2021-05-19

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