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ELCStruck OutPetition dated 7th November 2017 (notice of preliminary objection dated 28th June 2020)· [2021] KEELC 4280 (KLR)

Kiroket Ole Punyua v Umash Ole Mwanik & 2 others [2021] KEELC 4280 (KLR)

Environment and Land Court
16 February 2021
MKMohammed N. Kullow
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land petition because the petitioner skipped the appeal process the Land Adjudication Act requires before going to court.

What this practically means

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Executive summary

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The 1st Respondent filed a preliminary objection dated 28th June 2020 against the Petitioner's notice of motion dated 7th November 2017 and the entire petition, contending that the Environment and Land Court lacked jurisdiction under Article 162(2)(b) of the Constitution because the Petitioner sought judicial review-type relief; that the petition was frivolous and an abuse of process; that the Petitioner had not exhausted the appeal to the Minister under section 29 of the Land Adjudication Act, Cap 284 following the District Land Adjudication Officer's decision of 18th September 2009; and that the 1st Respondent's titles to CIS-MARA/KOJONGA/471 and 472 were valid and unchallenged. The Petitioner argued the suit was properly before the court under Article 162(2), that the objection raised factual disputes unsuitable for determination as a preliminary objection, and that he was never informed of the adjudication process. The court framed two issues: whether the Petitioner had exhausted the procedure for redress under the Land Adjudication Act, and whether the court had jurisdiction. Applying Mukisa Biscuit on preliminary objections, and the exhaustion doctrine from Speaker of the National Assembly v Karume and Mutanga Tea & Coffee, the court held that the Petitioner had a recourse under section 30(3) to appeal to the Minister even on the complaint of denial of fair hearing and had not explained his failure to do so. Section 30(1) further barred institution of civil proceedings concerning land in an adjudication section before the register became final. The court struck out the petition with no order as to costs.

Key legal issues

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01

Exhaustion of statutory remedies under the Land Adjudication Act

Holding

The Petitioner did not exhaust the remedies under the Land Adjudication Act; he should have appealed to the Minister under section 29/30(3) before coming to court.

Reasoning

The prayers in the petition sought to nullify the district Land Adjudication Officer's proceedings and ruling for want of fair hearing. Section 29 of the Act provides an appeal to the Minister within sixty days, and the court held that the Petitioner had a recourse under section 30(3) to appeal even over denial of fair hearing, and gave no reasons for bypassing it. Following Speaker of the National Assembly v Karume and Mutanga Tea, statutory dispute resolution mechanisms must be exhausted first, and none of the Act's provisions had been declared unconstitutional.

p. 3
02

Jurisdiction of the court to entertain the petition

Holding

The court lacks jurisdiction because section 30 of the Land Adjudication Act bars institution of civil proceedings concerning an interest in land in an adjudication section until the adjudication register is final.

Reasoning

Relying on Owners of Motor Vessel 'Lilian's v Caltex Oil and the Mwongela case, the court held it must down its tools where a party fails to adhere to the statutory procedure. Section 30(1) prohibits instituting or entertaining civil proceedings on land in an adjudication section without the adjudication officer's written consent, which the Petitioner did not obtain. The respondents' superior-court authorities took precedence over those relied on by the Petitioner.

p. 4

Legal principles established

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  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
  • An aggrieved party must resort to a statutorily prescribed dispute resolution mechanism before invoking the inherent jurisdiction of the High Court.
  • Definition of a preliminary objection per Mukisa Biscuit.
  • No person shall institute, and no court shall entertain, civil proceedings concerning an interest in land in an adjudication section until the adjudication register has become final, save with the adjudication officer's consent.

Court orders

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  1. 1.The Preliminary Objection has merits and the petition is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b)
  • Constitution of Kenya 2010Article 159(2)(c)
  • Constitution of Kenya 2010Article 165(3)(a)
  • Land Adjudication Act, Cap 284sections 25, 26, 26A, 27, 28, 29, 30(1), 30(2), 30(3)
  • Land Consolidation Act, Cap 283section 8(1) and (2)
  • Land Registration Act, No. 3 of 2012sections 26(1) & 80
  • Law Reform Act, Cap 9sections 8 and 9
  • Civil Procedure Rules 2010Order 53

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Owners Of Motor Vessel 'Lilian's Vs Caltex Oil Kenya Ltd
    (1989) 1 KLR 1
  • Reuben Mwongela M'itelekwa (Suing As The Legal Representative Of The Estate Of M'itelekwa M'much Eke Naituri Alias M'itelekwa Mucheke) V Paul Kigea Nabea & 2 Others
    (2019) eKLR
  • Speaker of the National Assembly vs. James Njenga Karume
    [1992] eKLR
  • Mutanga Tea & Coffee Company Ltd. vs. Shikara Ltd & Another
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 (challenged by the 1st Respondent's preliminary objection)

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, "Kiroket Ole Punyua v Umash Ole Mwanik & 2 others [2021] KEELC 4280 (KLR)", Case Analysis (2021). Petition dated 7th November 2017 (notice of preliminary objection dated 28th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4280/eng@2021-02-16

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