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ELCOtherPetition dated 30th April 2019 (Nakuru ELC)· [2021] KEELC 4072 (KLR)

Mahinda Ndegwa & 129 others v Families Clans of Kipboson arap Selumbu and Kipkilach arap Leitich & another [2021] KEELC 4072 (KLR)

Environment and Land Court
8 March 2021
DOD. O. Ohungo
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court declined to decide this Mau Narok land dispute because an earlier case had already cancelled the contested land decision and gazette notice.

What this practically means

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Executive summary

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The petitioners, describing themselves as residents and proximate neighbours settled on Metta Farm (LR No. 8653) in Mau Narok with titles issued by the government, petitioned against the families of Kipboson Arap Selembu and Kipkilach Arap Leitich (1st respondents) and the National Land Commission (2nd respondent). They challenged the NLC's determination of 7th February 2019, made on the 1st respondents' claim of historical land injustice, as unconstitutional for want of due process and lack of their involvement, and sought nullification of Gazette Notice No. 1995 of 1st March 2019, a declaration of their ownership, and restraint against interference with their titles, alleging contravention of Articles 40, 42 and 43. The 1st respondents maintained their family had occupied the land before independence until colonial eviction in 1954 and that natural justice was observed in the NLC process; the NLC asserted its statutory mandate and said all parties participated in hearings and a site visit. The court observed that in Nakuru ELC Judicial Review No. 6 of 2019 (Republic vs National Land Commission Ex Parte Erastus Githuku Njuguna & Others), judgment delivered on 17th September 2020, it had already quashed the same NLC determination and gazette notice by certiorari. The petition was therefore moot and was marked overtaken by events, with each party bearing its own costs.

Key legal issues

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01

Effect of a prior quashing order on a parallel petition challenging the same decision

Holding

The petition was rendered moot because the court had, in Nakuru ELC Judicial Review No. 6 of 2019, quashed the NLC determination of 7th February 2019 and Gazette Notice No. 1995 of 1st March 2019 allocating the suit property to the 1st respondents

Reasoning

The court noted that in the judicial review proceedings, judgment delivered on 17th September 2020, an order of certiorari had already brought into the court and quashed the very decision and gazette notice the petitioners sought to nullify. With the impugned determination and gazette notice already set aside, there remained no live controversy for the petition to resolve, so the petition was marked overtaken by events with no order as to costs.

p. 2

Legal principles established

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  • A petition seeking to impugn a decision that has already been quashed by the same court in other proceedings is moot and overtaken by events

Court orders

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  1. 1.The petition is marked overtaken by events
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 67
  • Constitution of KenyaArticles 40, 42, 43

Cases cited (1)

  • Republic vs National Land Commission Ex Parte Erastus Githuku Njuguna & Others
    Nakuru ELC Judicial Review No. 6 of 2019
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging contravention of Articles 40, 42 and 43; Commission established under Article 67)

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, "Mahinda Ndegwa & 129 others v Families Clans of Kipboson arap Selumbu and Kipkilach arap Leitich & another [2021] KEELC 4072 (KLR)", Case Analysis (2021). Petition dated 30th April 2019 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4072/eng@2021-03-08

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