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ELCDismissedAppeal from H.C MISC APPL No. 18 of 2008-related suit; memorandum of appeal dated 25/07/2019 (trial court strike-out ruling of 2019)· [2021] KEELC 3729 (KLR)

Peter Nchebere v M’inanga M’akwalu & 3 others [2021] KEELC 3729 (KLR)

Environment and Land Court
14 April 2021
2,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's appeal, ruling that ownership disputes in adjudication areas must go through statutory land adjudication bodies, not regular courts.

What this practically means

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Executive summary

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The appellant, as plaintiff, sued for a declaration that parcels 3543, 1684, 1504 and 5930 in Athiga/Athanja Adjudication Section, Tigania East, belong to him, claiming possession and extensive development since 1962. He sought an order compelling the District Land Adjudication Officer to transfer the parcels to him and a permanent injunction against eviction. The respondents denied the claim and counterclaimed for a declaration that the parcels belong to them plus a permanent injunction. The trial court struck out the plaintiff's suit for lack of jurisdiction, holding he ought first to have appealed to the Minister under the adjudication statutes. On appeal, the ELC in Meru noted an anomaly in the trial court's reference to a preliminary objection, then analysed the statutory dispute-resolution mechanism under the Land Consolidation Act (Cap 283) and the Land Adjudication Act (Cap 284). The court held that the earlier judicial review quashing of the DLASO's decision (which had rested on the unlawful Nthenge oath) returned the parties to their previous status, so the appellant could not have appealed to the Minister; however, the dismissal of his objection left the parcels registered in the respondents' names and the dispute unresolved. Ascertainment of rights in land within an adjudication section must be resolved by the statutory bodies. The appeal was found unmerited and dismissed, with the appellant directed to lodge his complaint with the Adjudication officer within 21 days, and condemned to pay the costs of the suit. The judgment was delivered electronically under COVID-19 practice directions, with deemed waiver of Order 21 rule 1.

Key legal issues

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01

Jurisdiction of courts over disputes arising in the land adjudication process

Holding

While courts have jurisdiction to determine some disputes arising out of the adjudication process, they must be careful not to emasculate the powers bestowed on adjudication bodies by the statutes; the ascertainment of rights in the suit parcels should be resolved by the statutory bodies

Reasoning

The court traced the elaborate statutory dispute-resolution mechanism under Cap 283 and Cap 284, from claims to the recording officer through the Adjudication Committee, Arbitration Board, objections to the Adjudication officer and appeal to the Minister. It held that although quashing of the DLASO decision meant the Minister-appeal route was not available, the dispute remains within the statutory scheme and must be pursued there.

p. 3
02

Effect of the quashing of the DLASO decision in Meru HC Misc. Application 18 of 2008

Holding

The quashing merely undid what the DLASO had done (the Nthenge oath administration) and returned the parties to their previous status; the dismissal of the appellant's objection and registration of the parcels in the respondents' names were not disturbed, leaving the dispute unresolved

Reasoning

The judicial review order of certiorari quashed the DLASO decision only because the Nthenge oath was an unknown dispute resolution mechanism under the adjudication statutes. The appellant was thus restored to the position before lodging the objection proceedings, and the statutory process he initiated must be completed in the same forum in the right way.

p. 3
03

Whether the trial court erred in failing to address the respondents' counterclaim

Holding

The appeal nonetheless failed because the appellant's claim could not be entertained by the court; the proper forum is the adjudication officer, before whom any complaint including any counterclaim issues must be pursued

Reasoning

Although the appellant complained that the trial magistrate did not consider the counterclaim, the court held the appeal unmerited and directed the appellant to lodge his complaint with the Adjudication officer within 21 days, effectively remitting the dispute to the statutory process rather than determining ownership in court.

p. 4

Legal principles established

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  • Ascertainment of rights and interests in land within an adjudication section must be resolved by the statutory bodies established under the Land Adjudication Act (Cap 284) and the Land Consolidation Act (Cap 283)
  • Quashing of a DLASO decision by way of judicial review restores parties to their previous status and leaves the dispute unresolved; the statutory process must then be completed in the same forum but in the right way
  • Where adjudication proceedings are conducted contrary to law, they may be re-heard by the adjudication bodies where practically possible

Court orders

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  1. 1.Appeal found not merited and accordingly dismissed
  2. 2.Appellant directed to lodge his complaint with the Adjudication officer within 21 days from the date of delivery of the judgment, failure to which the window shall be closed upon him
  3. 3.Appellant condemned to pay the costs of the suit

Authorities

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Legislation

  • Land Consolidation ActCap 283; preamble
  • Land Adjudication ActCap 284; Sections 13, 19, 24, 26(3); preamble
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (15)

  • Selle & Another vs. Associated Motor Board Company Ltd
    [1968] EA 123
  • Kenya Ports Authority vs. Modern Holdings (E.A.) Limited
    (2017) eKLR
  • Owners of the Motor Vehicle M.V. Lillians versus Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Rose Njiru V Nicholas Muthuri
    [2018] eKLR
  • Nicholas Mugambi & another (suing as the legal representatives of the estate of Peter Etharia M'Kailibi) & 4 others v Zachary Baariu & 6 others
    [2018] eKLR
  • Abdallah Mangi Mohamed vs. Lazarus & 5 Others
    (2012) eKLR
  • Mugambi Nicholas & Others vs. Zaachary Baariu & Others
    Meru ELC 167 of 2011
  • Abdalla Mangi Mohammed & Others vs. Lazarus Benja & Others
    (2012) eKLR
  • Martha Kigeu Vs Johana Tibino
    (2014) eKLR
  • Republic v Tigania East District Land Adjudication and Settlement Officer & another; Joseph Mathita Ikirima Ex parte Solomon Mworia Samuel
    [2020] 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
  • Stephen Kirimi M'Rinturi v Land Adjudication and Settlements Officer – Igembe District & 3 Others; Peter Kumbu Kimunya & Another (Interested Parties)
    [2020] eKLR
  • Tobias Achola Osidi & 13 Others vs. Cyprianus Otieno Ogalo & 6 others
    (2013) eKLR
  • Muthara Njuri Ncheke Council of Elders & another v Committee of Ngare Mara/Gambella Adjudication Section & 2 others
    [2019] eKLR
  • Peter Kimandiu v Land adjudication officer Tigania West District & 4 others
    [2016] eKLR
On appeal from
Principal Magistrate's Court (Meru)
Suit relating to parcels 3543, 1684, 1504 and 5930 Athiga/Athanja/Adjudication Section (number not stated)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters (statute not expressly cited in the judgment)

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 Nchebere v M’inanga M’akwalu & 3 others [2021] KEELC 3729 (KLR)", Case Analysis (2021). Appeal from H.C MISC APPL No. 18 of 2008-related suit; memorandum of appeal dated 25/07/2019 (trial court strike-out ruling of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3729/eng@2021-04-14

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