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ELCStruck OutNot stated in the judgment (Notice of Motion dated 12th July 2019)· [2021] KEELC 3920 (KLR)

Corave Amrnath (Suing on behalf of the late Amarnath Gupta) v Patricia Kazungu & 2 others [2021] KEELC 3920 (KLR)

Environment and Land Court of Kenya
18 March 2021
CYC.K. Yano
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute because the Minister's adjudication decision is final and only judicial review, not a fresh suit, can challenge it.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of his late father Amarnath Gupta, moved the court by notice of motion dated 12th July 2019 seeking a temporary injunction restraining the 1st and 2nd defendants from transferring, selling, registering or mortgaging Plot No. 1222 Kawala 'B' pending the hearing of the suit. The plaintiff contended that the suit property had been registered in his father's name during adjudication and that an objection decided in the estate's favour was later overturned on appeal by the Minister under the Land Adjudication Act, Cap 284, allegedly in bad faith and in disregard of the evidence. The 1st defendant filed a replying affidavit and a preliminary objection, contending that the Minister's decision was final and unchallenged, that the plaintiff had not sought judicial review to quash it, and that the court therefore lacked jurisdiction, the suit being an abuse of process. The application and preliminary objection were heard concurrently by written submissions. Relying on Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia, the court held that jurisdiction goes to the heart of the matter. It found that the Land Adjudication Act's inbuilt dispute resolution machinery had been exhausted and that Section 29(1)(b) makes the Minister's decision final, with no further appeal to the court. The court upheld the preliminary objection, holding that it could entertain such a dispute only in the exercise of its supervisory jurisdiction through judicial review, which the plaintiff had not invoked. The notice of motion and the suit were struck out with costs to the 1st defendant.

Key legal issues

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01

Whether the court has jurisdiction to hear the plaintiff's challenge to the Minister's decision under the Land Adjudication Act

Holding

The court has no jurisdiction to sit on appeal against the Minister's decision; the only avenue was judicial review of the administrative action, which the plaintiff did not pursue

Reasoning

The dispute emanated from the statutory adjudication machinery, whose inbuilt dispute resolution mechanism had been exhausted with the Minister's decision. Section 29(1)(b) makes that decision final and provides no further appeal. The Minister's decision being an administrative action, the plaintiff could only approach the court by way of judicial review with sufficient reason, which was not done. The suit was therefore misconceived and without foundation.

p. 2
02

Whether the plaintiff satisfied the conditions for a temporary injunction

Holding

Not reached; the preliminary objection on jurisdiction succeeded, so the application was struck out

Reasoning

Having found that it lacked jurisdiction over the suit challenging the Minister's decision, the court did not consider the merits of the injunction application. Jurisdiction being foundational, the court downed tools and struck out both the motion and the suit with costs to the 1st defendant.

p. 2

Legal principles established

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  • The Environment and Land Court cannot entertain a dispute arising from the land adjudication process challenging the Minister's final decision under the Land Adjudication Act, save in the exercise of its supervisory jurisdiction by way of judicial review
  • The Minister's decision under Section 29(1)(b) of the Land Adjudication Act is final and the Act provides no further appeal to the court

Court orders

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  1. 1.The 1st defendant's preliminary objection is upheld
  2. 2.The notice of motion dated 12th July 2019 and the suit are struck out with costs to the 1st defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 51; Order 53
  • Land Adjudication Act, Cap 284 Laws of KenyaSections 26, 27, 28 and 29(1)

Cases cited (2)

  • Owners of the Motor Vessel “Lillian S” –v- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Samuel Kamau Macharia & Another –v- Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under statute; the court held it lacked jurisdiction to sit on appeal over the Minister's decision under the Land Adjudication Act, Cap 284

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Corave Amrnath (Suing on behalf of the late Amarnath Gupta) v Patricia Kazungu & 2 others [2021] KEELC 3920 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 12th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3920/eng@2021-03-18

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