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ELCStruck OutPetition (ELC Nakuru/ELD) - number not stated in judgment· [2021] KEELC 4158 (KLR)

Katemuge Clan Being Represented by the Representatives Hereunder named; James Kimisoi & 2 others v Director Land Adjucation & 5 others [2021] KEELC 4158 (KLR)

Environment and Land Court
19 January 2021
5,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 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 petition because the clan never obtained the mandatory Land Adjudication Officer's consent before suing.

What this practically means

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Executive summary

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This ruling decided a preliminary objection by the 1st, 2nd and 3rd respondents, supported by the 4th to 6th respondents, against a constitutional petition filed by members of the Katemuge clan. The petitioners challenged an ongoing land adjudication process in which the entire suit land had been demarcated and recorded to the Kapchepkosir clan, despite a 1997 High Court ruling that the two clans share the land equally. They sought a declaration of equal entitlement, a fresh adjudication process, and mandamus compelling the Land Adjudication Officer to conduct a new demarcation. The respondents argued that section 30 of the Land Adjudication Act (Cap 284) required the written consent of the Land Adjudication Officer before any suit concerning an interest in land in an adjudication section, that such consent was neither obtained nor denied, and that the petitioners had not exhausted the remedies under sections 26 and 29 of the Act. The petitioners countered that consent was sought by letter dated 17th October 2019 but never answered, leaving no refusal to appeal against, and that the statutory remedies were unavailable while adjudication was ongoing. The court held that the claim squarely concerned an interest in land, making consent mandatory; that judicial review of process alone would not require consent, but this petition faulted both process and sought determination of entitlement; and that the petitioners should have pursued the statutory mechanisms. Upholding the objection, the court struck out the petition with an order that each party bear their own costs.

Key legal issues

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01

Whether the petition required the consent of the Land Adjudication Officer under section 30 of the Land Adjudication Act

Holding

It did; the petition sought determination of an interest in land, so consent was mandatory and its absence stripped the court of jurisdiction

Reasoning

The court read the petition and orders sought and found the claim was for an interest in land - equal sharing of the suit land with the Kapchepkosir clan - plus judicial review relief. Both the interest claim and the reference to a prior High Court ruling confirming entitlement confirmed the petition concerned an interest in land. Section 30 in mandatory terms bars institution and entertainment of such suits without written consent, which was never obtained.

p. 6
02

What is the legal position where a party requests consent and receives no response or is denied it

Holding

The proper course was to compel the Land Adjudication Officer to avail the consent, not to file the petition

Reasoning

The petitioners wrote on 17th October 2019 seeking consent but received no reply. The court held that where consent is unreasonably denied, filing suit was not wise since the petitioners could resort to compulsion of the officer. Failure to obtain consent before filing meant the petition could not stand.

p. 6
03

Whether the exhaustion doctrine applied given the ongoing adjudication

Holding

Yes; the petitioners ought to have followed the dispute-resolution mechanisms under the Land Adjudication Act

Reasoning

The orders sought showed the adjudication process was ongoing, hence the request for a fresh adjudication. The court held that consistency requires no parallel processes, and the petitioners should have pursued the laid-down statutory mechanisms rather than invoking the court's jurisdiction.

p. 6

Legal principles established

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  • Where a statute provides a clear procedure for redress of a grievance, that procedure should be strictly followed
  • A claimant seeking determination of an interest in land in an adjudication section must obtain the written consent of the Land Adjudication Officer under section 30 before instituting suit; without it the court has no jurisdiction
  • Judicial review proceedings challenging the legitimacy of the adjudication process, as opposed to an interest in land, do not require the consent of the Land Adjudication Officer

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The petition is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)sections 2, 6, 8 (Land Consolidation Act), 26, 29(3), 30, 30(1), 30(3)
  • Constitution of Kenya, 2010Articles 22(1), 47, 50(1), 159(2)(d), 165(3)(d)
  • Registered Land Act (Cap 300)section 2 (definition of interest, as referenced)
  • Inter-Governmental Relations ActPart IV (as referenced in Mohamed Ali Baadi quotation)

Cases cited (16)

  • Republic vs Musanka Ole Runkes Tarakwa Lempaso Ole Kuyioni & 2 others and Joseph Lesalol Lekitio & Others (exparte applicants)
    Nakuru ELC Judicial Review Case No. 13 of 2014; [2015] 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
  • Musana Ole Pere & another v District Land Adjudication Section and Settlement Officer Narok South & 23 others; Paramalai Pere & another (Interested Party)
    [2019] eKLR
  • William Mutuura Kairiba v Samuel Nkari & 2 others
    [2018] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
  • Joshua Werunga v Joyce Namunyok & 2 Others
    (2015) eKLR
  • Raila Odinga v IEBC & Others
    (2013) eKLR
  • Benjamin Okwaro Estika v Christopher Anthony Ouko & Another
    (2013) eKLR
  • Speaker of National Assembly Versus Karume
    [1992] KLR 425
  • Anne Wamuda & 3 Others Versus Kenya Railways Corporation & Another
    Mombasa High Court Petition No. 18 of 2013; [2015] eKLR
  • County Government of Nyeri vs Cabinet Secretary, Ministry of Education, Science and Technology & Another
    (2014) eKLR
  • Mohamed Ali Baadi and Others v Attorney General & 11 Others
    (2018) eKLR
  • Dawda K. Jawara vs Gambia
  • Rachel Auma v Municipal Council of Kisumu
    (2012)
  • Republic v District Land Adjudication and Settlement Officer Igembe North District & another; Moses Ituru (Interested Party) Ex parte Joshua Munoru M'limbiine
    [2018] eKLR
  • Republic Versus The District Land Adjudication & Settlement Officer Igembe North District, The Hon. Attorney General And Janet Kamon, Ex-Parte Applicant Reuben Liria
    Meru ELC Misc. Civil Application No. 32 of 2016
Jurisdiction invoked
Environment and Land Court jurisdiction (Article 162(2)(b) and section 30 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, "Katemuge Clan Being Represented by the Representatives Hereunder named; James Kimisoi & 2 others v Director Land Adjucation & 5 others [2021] KEELC 4158 (KLR)", Case Analysis (2021). Petition (ELC Nakuru/ELD) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4158/eng@2021-01-19

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