Republic v Land Adjudication Office Tuturung Adjudication Section Elgeyo Marakwet & another Ex parte Biyaa Clan [2021] KEELC 3267 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC had jurisdiction absent the consent required under Section 30(1) of the Land Adjudication Act
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
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.
Whether the Ex Parte Applicant failed to exhaust the remedies under Sections 26 and 29 of the Land Adjudication Act
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
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.
Whether the judicial review application was an abuse of the court process
Yes - the application was premature, filed without the statutory consent and in disregard of the statutory remedies, and was therefore an abuse of process
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.
Legal principles established
#- 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
#- 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.Costs to the Respondents
- 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.