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ELCDismissedNot stated in the judgment (petition dated 27th August 2020)· [2021] KEELC 4161 (KLR)

Moses Barkutwo & 3 others v District Land Adjudication & Settlement Officer Elgeyo-Marakwet County & another; Moses Barmoto & 11 others (Interested parties) [2021] KEELC 4161 (KLR)

Environment and Land Court
19 January 2021
MOM. A. ODENY
4,255 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that constitutional challenges to a land adjudication process can proceed to court without the Adjudication Officer's consent or prior statutory objections.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on the respondents' preliminary objection dated 30th September 2020 seeking dismissal of the petitioners' constitutional petition challenging the adjudication process in the Emsea/Chang'ach Adjudication Section, Keiyo South Adjudication Area. The objectors contended that under section 30 of the Land Adjudication Act the petition could not be instituted without the written consent of the Land Adjudication Officer, that the suit parcels fell within an adjudicated area, and that the petitioners had failed to exhaust the objection and appeal remedies in sections 26 and 29. The petitioners argued that their petition challenged the legitimacy and constitutionality of the process - absence of public participation, absence of a section 5 notice, and an all-male adjudication committee in breach of Article 27 - rather than any interest in land, and that the court's supervisory jurisdiction under Articles 162(2)(b) and 165(6) applied. The court examined the prayers in the petition and held they sought to impugn the legitimacy of the process, not to ascertain rights or proprietary interests, so section 30 consent was not required, and it would be moot to expect the Adjudication Officer to consent to a challenge to his own process. The statutory objection and appeal mechanisms were held inapplicable because the ascertainment-of-rights stage had not been reached. The preliminary objection was dismissed with costs, with directions for Order 11 compliance and mention before the Deputy Registrar.

Key legal issues

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01

Whether the absence of consent from the Land Adjudication Officer under section 30 of the Land Adjudication Act ousts the court's jurisdiction

Holding

Consent is not required because the petition challenges the legitimacy of the adjudication process, not a determination of interests in land

Reasoning

The court examined the prayers in the petition and found they sought declarations that the appointment of the adjudication committee was unconstitutional, that there was no public participation and no section 5 notice. These are challenges to process, not to proprietary interests. It would be moot to expect the Adjudication Officer to consent to a challenge to his own process, and the Land Adjudication procedures cannot adjudicate constitutional violations.

p. 6
02

Whether the petitioners were required to exhaust the remedies in sections 26 and 29 of the Land Adjudication Act

Holding

Exhaustion was not required because the adjudication register objection and appeal mechanisms apply only after ascertainment of rights, a stage not yet reached

Reasoning

Section 26 allows objections to the adjudication register by persons aggrieved by its incorrectness or incompleteness, and section 29 allows appeals to the Minister from such determinations. The petitioners are challenging the constitutionality and legitimacy of the process before any register exists, so those remedies are unavailable to them and the court, in its supervisory role, is the proper forum.

p. 6

Legal principles established

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  • Section 30 of the Land Adjudication Act does not bar suits that challenge the legitimacy or legality of the adjudication process; such suits are not proceedings 'concerning an interest in land'
  • Where a party challenges the legitimacy of the adjudication process, resort to the objection and appeal mechanism under sections 26 and 29 of the Land Adjudication Act is not required

Court orders

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  1. 1.The preliminary objection dated 30th September 2020 is dismissed with costs
  2. 2.Parties to comply with Order 11 within 30 days
  3. 3.The matter to be mentioned before the Deputy Registrar for compliance

Authorities

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Legislation

  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 26(1) and (2)
  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 6
  • Land Adjudication ActSection 5
  • Land Adjudication ActSection 2
  • Registered Land Act (Cap. 300)Definition of interest
  • Constitution of KenyaArticles 10, 27, 63, 162(2)(b), 165(6), 258, 2(1), 3(1), 22(1), 23(1)
  • Civil Procedure RulesOrder 11

Cases cited (9)

  • Samuel Kamau & Another v. Kenya Commercial Bank and two others
    Supreme Court Civil Application No. 2 of 2011
  • 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 Parties)
    [2019] eKLR
  • Speaker of National Assembly Versus Karume
    [1992] KLR 425
  • Anne Warnuda & 3 Others Versus Kenya Railways Corporation & Another
    Mombasa High Court Petition No. 18 of 2013; [2015] eKLR
  • Stephen J Michuki Kiunga vs. Nkuni Moruchiu and 2 Others
    ELC Petition 21 of 2012
  • Tobias Achola Osindi & 13 others vs Cyprian Otieno Ogalo & 6 others
  • The Muthaara Njuri Ncheke Council of Elders & Another vs the Committee Ngare Mara/Gambella Adjudication section and 2 others
Jurisdiction invoked
Article 162(2)(b) as read with Article 165(6) of the Constitution (supervisory jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Moses Barkutwo & 3 others v District Land Adjudication & Settlement Officer Elgeyo-Marakwet County & another; Moses Barmoto & 11 others (Interested parties) [2021] KEELC 4161 (KLR)", Case Analysis (2021). Not stated in the judgment (petition dated 27th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4161/eng@2021-01-19

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