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ELCDismissedNot stated in excerpt (Petition – Morijo-Loita adjudication section)· [2022] KEELC 299 (KLR)

Morijo-Loita Residents Associations & 158 others v Narok South Land Adjudication & Settlement Officer & 2 others [2022] KEELC 299 (KLR)

Environment and Land Court
27 April 2022
CMC. G Mbogo
5,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed residents' bid to halt land adjudication because they skipped the dispute steps the Land Adjudication Act requires first.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 24th February 2021 in a constitutional petition concerning the land adjudication process in the Morijo-Loita adjudication section. The petitioners, residents and claimed beneficiaries of land in the section, sought orders compelling the respondents to furnish certified copies of the adjudication by-laws, minutes, notices, the gazetted map, confirmation of total acreage including the Loita forest portion, the register of members/landowners and any spatial plan; conservatory orders halting the adjudication process; and an order freezing the 2nd respondent's Cooperative Bank account into which the petitioners contributed funds. They alleged denial of access to information contrary to Article 35, lack of public participation in formulating the by-laws and appointing the adjudication committee contrary to Article 10(2), gender imbalance in committee appointments, and a clandestine register excluding some residents. The respondents responded that the by-laws and register were accessible, public participation occurred across 24 villages, the committee was appointed after nominations, and that the petitioners had failed to use dispute resolution mechanisms under the Land Adjudication Act. The court framed three issues: entitlement to conservatory orders, exhaustion of remedies, and costs. Applying Gatirau Peter Munya and CREAW, it held the petitioners' apprehensions speculative and the real danger unproven, noting the by-laws had been made accessible by letters dated 30th July and 5th August 2020. It further held that adequacy of public participation could not be decided at the interlocutory stage, and that the application was premature because the petitioners had not exhausted the statutory dispute mechanisms in sections 9(2), 26 and 30(1) of the Land Adjudication Act. The application was dismissed, the status quo orders vacated, and costs reserved to abide the petition's outcome. Delivered via email on 27th April 2022 by Mbogo C.G, Judge.

Key legal issues

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01

Whether petitioners established a prima facie case warranting conservatory orders

Holding

They did not; allegations of danger were speculative and access to information had been provided

Reasoning

The court applied the Munya and CREAW thresholds: a prima facie case beyond speculation plus real, imminent danger. The petitioners' claims that committee members would allocate themselves land and control of Loita forest were speculative. Documents such as the by-laws were shown by correspondence to be accessible from the relevant offices, negating the claimed denial of access.

p. 7
02

Whether the petition was premature for failure to exhaust remedies

Holding

Yes; petitioners bypassed the dispute resolution mechanisms in the Land Adjudication Act, including objections and appeals to the Minister

Reasoning

Sections 9(2), 26, 29 and 30(1) of the Land Adjudication Act provide mechanisms for hearing objections, appeals to the Minister and bar civil proceedings before the register becomes final. The petitioners had not filed objections or appeals, rendering the application premature.

p. 7
03

Whether adequacy of public participation could be determined at the interlocutory stage

Holding

No; that question must await the hearing of the main petition

Reasoning

The court held that interrogating the principles of public participation requires a full evidentiary inquiry unsuitable at an interlocutory stage limited to assessing prima facie case and real danger.

p. 7

Legal principles established

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  • A party seeking a conservatory order must demonstrate a prima facie case with likelihood of success and real danger of prejudice from violation of the Constitution
  • A petitioner must exhaust statutory dispute resolution mechanisms under the Land Adjudication Act before approaching the court

Court orders

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  1. 1.The Notice of Motion dated 24th February 2021 is dismissed for lack of merit
  2. 2.The orders on status quo are vacated
  3. 3.Costs of the application shall abide the outcome of the petition
Jurisdiction invoked
Articles 20, 21, 22 and 23 of the Constitution; Rules 19, 23 and 24 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms) High Court Practice and Procedure Rules 2013

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, "Morijo-Loita Residents Associations & 158 others v Narok South Land Adjudication & Settlement Officer & 2 others [2022] KEELC 299 (KLR)", Case Analysis (2022). Not stated in excerpt (Petition – Morijo-Loita adjudication section). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/299/eng@2022-04-27

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