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ELCDismissedJudicial Review No. 4 of 2019· [2021] KEELC 4143 (KLR)

Samuel Letangues Naingisa & 2 others v Director of Land Adjudication and Settlement & 3 others [2021] KEELC 4143 (KLR)

Environment and Land Court
18 February 2021
MKMohamed N. Kullow
1,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land adjudication challenge because the applicants skipped the objection process required under the Land Adjudication Act first.

What this practically means

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Executive summary

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The three Applicants, described as registered land owners within the Naisoya Land Adjudication Section in Narok North Sub-County, moved the Court by Notice of Motion dated 15th August 2019 seeking certiorari to quash, mandamus to rescind, and prohibition against a Notice of Completion of Adjudication Register dated 8th May 2019 issued by the Land Adjudication & Settlement Officer. Through the 1st Applicant's affidavit, they alleged the Notice was illegal, irregular and issued without public participation under Article 10 of the Constitution, and feared deprivation of their land and possible bloodshed. The 1st, 2nd and 4th Respondents contended the Notice was issued in accordance with Section 25 of the Land Adjudication Act and was not an administrative decision reviewable by the court, and that the proper avenue was an objection before the Sub-County Land Adjudication and Settlement Officer. The 3rd Respondent added that the Applicants each held registered land and that failure to invoke Section 30 of the Act was an abuse of process. Framing three issues - whether the Notice was a final decision, entitlement to relief, and costs - the court applied the Gathenji principles on the scope of certiorari, prohibition and mandamus, found the Officer had acted within Sections 25 and 26 of the Act, and held the Applicants had not exhausted the alternative objection remedy under Section 29, making the application premature. The Notice of Motion was dismissed with costs on 18th February 2021.

Key legal issues

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01

Whether the Notice of Completion of Adjudication dated 8th May, 2019 was a reviewable final decision

Holding

No. The Land Adjudication & Settlement Officer acted within the confines of Sections 25 and 26 of the Land Adjudication Act, Cap 284, and the Notice set out the steps available to aggrieved parties.

Reasoning

The court found the Notice was issued in accordance with the statutory scheme for completion of adjudication registers, was clear on steps and timelines for aggrieved parties, and therefore did not constitute an illegal, wrongful or irregular administrative act warranting judicial review intervention.

p. 3
02

Whether the Applicants were entitled to the prerogative orders sought

Holding

No. The application was premature because the Applicants did not exhaust the alternative remedy under Section 29 of the Land Adjudication Act, and the remedies sought were in any event unsuitable.

Reasoning

Relying on Republic v Kenya National Examinations Council ex-parte Gathenji, the court held that prohibition and mandamus cannot quash decisions already made, and certiorari issues only where a decision is without jurisdiction, in excess of jurisdiction or in breach of natural justice. Since the Officer acted within statutory powers, and objections under the Act were unexhausted, no relief was available.

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Legal principles established

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  • An applicant must exhaust the alternative dispute resolution mechanism provided by statute, here objections under Section 29 of the Land Adjudication Act, before resorting to judicial review; failure renders the application premature.
  • Certiorari is the only remedy that quashes an existing decision; prohibition and mandamus are prospective and cannot undo what has been done.

Court orders

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  1. 1.The Notice of Motion dated 15th August, 2019 is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 24, 27(1)(2)(3)(4)(5), 40, 47(1), 60, 64, 69, 259, 260
  • Land Adjudication Act, Cap 284Sections 5, 6, 25, 26, 29, 30
  • Environment and Land Court Act, 2012Sections 12, 13(1)
  • Fair Administrative Action ActSections 1, 2, 3, 7, 10

Cases cited (1)

  • Republic vs Kenya National Examination Council Ex-Parte Gathenji And Others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under the Law Reform Act and Fair Administrative Action Act; matter framed under Articles 22, 23, 24, 27, 40, 47(1), 60, 64, 69, 259 and 260 of the Constitution and 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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Cite this brief

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Cite this brief

Caselaw, "Samuel Letangues Naingisa & 2 others v Director of Land Adjudication and Settlement & 3 others [2021] KEELC 4143 (KLR)", Case Analysis (2021). Judicial Review No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4143/eng@2021-02-18

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