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ELCPartially AllowedConstitutional Petition dated 11.6.2019 (number not stated in judgment)· [2022] KEELC 396 (KLR)

David Mungiria Mwongo v District Land Adjudication Officer Tigania West & 6 others [2022] KEELC 396 (KLR)

Environment and Land Court
30 March 2022
6,001 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 cancelled illegal land subdivisions because land officials decided objections without the legally required land committee.

What this practically means

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Executive summary

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The petitioner, administrator of the estate of David Mungiria Mwongo, petitioned the Environment and Land Court alleging that Parcel No. 2155 Uringu 1 Adjudication Section, recorded as 1.28 acres in 1992, was unlawfully reduced to 0.50 acres and the 0.78 acres excised and subdivided into parcels registered in favour of the 4th to 7th respondents. He complained that his A/R objections (nos. 153, 154, 155) were heard and determined by the land adjudication officer without the participation of the land committee, contrary to the Land Consolidation Act and the rules of natural justice, violating his rights to property, fair hearing and fair administrative action under Articles 40 and 47. The 1st-3rd respondents maintained the reduction was effected by the land committee with the lost acreage transferred to Parcel 1478, and that the petition should have been brought by judicial review or ordinary suit. The 4th-7th respondents argued no constitutional issue was disclosed. The court framed six issues and held the petition met the Anarita Karimi Njeru and Mumo Matemu thresholds; that judicial review and constitutional remedies are fused under Articles 22 and 23; that the petitioner proved, under Sections 107 and 109 of the Evidence Act, that the objection proceedings were conducted without the committee contrary to statute; and that participation in a flawed process does not cure the illegality. The court declared the objection proceedings unconstitutional and the resulting subdivisions illegal, setting them aside, but declined the review, resurvey and interchange orders sought. Each party was to bear its own costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold of pleading constitutional issues with precision

Holding

The petition met the threshold; constitutional questions and reliefs were pleaded in the petition and supporting documents.

Reasoning

The court found the petition and its annexures disclosed the constitutional provisions said to be violated (Articles 40 and 47), the manner of violation (reduction of acreage without committee participation in the A/R objection) and the reliefs sought. Respondents responded to those constitutional questions, confirming they were properly raised. Submissions did not introduce unpleaded issues.

p. 6
02

Whether a constitutional petition is a competent avenue to challenge a decision under the Land Consolidation Act

Holding

Yes; after the 2010 Constitution remedies are fused and a petitioner may elect a constitutional petition or judicial review; nothing in the Land Consolidation Act restricts recourse to judicial review alone.

Reasoning

The court reasoned that judicial review remedies were fused into Articles 22 and 23 of the Constitution, so the petitioner could choose a constitutional petition. The Land Consolidation Act contains no provision restricting the petitioner to judicial review. Once non-compliance with the statute was raised, the burden shifted to the respondents to justify the non-compliance.

p. 7
03

Whether the A/R objection proceedings violated the petitioner's rights to fair hearing and fair administrative action

Holding

Yes; the objection was heard and determined without the land committee, contrary to the Land Consolidation Act and the Fair Administrative Action Act, failing the constitutional threshold.

Reasoning

The petitioner discharged his burden under Sections 107 and 109 of the Evidence Act by producing proceedings showing no committee members participated. The respondents did not deny the absence of committee members. Participation by the petitioner in a flawed process does not cure the illegality; the adjudication officer had a statutory and constitutional duty to observe natural justice.

p. 7
04

Whether the petitioner was entitled to constitutional relief

Holding

The petitioner was granted declarations that the objection proceedings were unconstitutional and that the resulting subdivisions were illegal and set aside, but not the review, resurvey and interchange orders sought.

Reasoning

Having found violations of fair hearing, fair administrative action and property rights, the court issued two declarations nullifying the objection proceedings and the consequent subdivisions. It declined to issue the more granular review, resurvey and interchange directions sought, and made no order as to costs, each party bearing their own costs.

p. 7

Legal principles established

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  • A petitioner must set out with reasonable precision the constitutional provisions infringed, the manner of infringement and the reliefs sought.
  • After the 2010 Constitution, judicial review remedies are fused with constitutional petitions under Articles 22 and 23; a litigant may elect either route.
  • A hearing and determination conducted without the statutory committee under the Land Consolidation Act is procedurally flawed and fails the constitutional test of fair hearing and fair administrative action, even if the petitioner participated in the process.

Court orders

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  1. 1.A declaration that the hearing and determination of A/R objection nos. 153, 154 and 155 regarding parcel no. Uringu 1/2155 were contrary to the Land Consolidation Act and the Fair Administrative Action Act 2015 and failed to meet the constitutional threshold as to fair hearing and fair administrative action.
  2. 2.A declaration that the subsequent subdivisions of parcel no. 2155 Uringu 1, namely parcel nos. 2212, 2322, 2176 and 2111, were mistaken, invalid and illegal in law and are set aside.
  3. 3.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 22, 22(3) & 4, 23, 23(3), 24, 40, 41, 47, 159, 165(2)(b)
  • Land Adjudication Actgeneral (Cap 283 referenced)
  • Land Consolidation Act (Cap 283)Sections 9, 10, 21, 26, 26(1), 26(2), 26(3)
  • Land Registration ActSection 26
  • Fair Administrative Action Act, 2015general
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 9, 10, 10(2), 10(3), 11, 15, 15(2), 20(1), 22(2)
  • Evidence ActSections 107, 109
  • Environment and Land Court ActSection 13

Cases cited (30)

  • Anarita Karimi Njeru -vs- Republic
    (1979) eKLR
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance and 5 others
    (2013) eKLR
  • Stephen Kirimi M'rinturi -vs- Land Adjudication and Settlements Officer – Igembe District & 3 Others; Peter Kumbu Kimunya & Another (Interested Parties)
    [2020]
  • Non-Governmental Organizations Co-ordination Board -vs- EG & 5 Others
    [2019] eKLR
  • Speaker of National Assembly -vs- Karume
    (2008) IKLR 425
  • Geoffrey Muthinja & another -vs- Samuel Muguna Henry and 1756 others
    (2015) eKLR
  • Timothy Njoya -vs- A.G and another
    (2014) eKLR
  • Olive Mwihaki Mugenda and another -vs- Okiya Omtata Okoiti and 4 others
    (2016) eKLR
  • Mary Anyango Onyango -vs- South Nyanza Sugar Co Ltd
    [2020] eKLR
  • IEBC -vs- Stephen Mutinda Mule
    (2014) eKLR
  • Peter Gichuki King’ara -vs- IEBC and 2 others
    (2013) eKLR
  • R.C.Vs -vs- RR
    (2021)
  • Turkana County Government & 2 others -vs- AG and others
    (2016) eKLR
  • Hakizimana Abdoul Abdulkarim -vs- Arrow Motors (EA) Ltd & another
    (2017) eKLR
  • Anne Wangui Ngugi & 2,222 others -vs- Edward Odundo C.E.O R.B.A
    (2015) eKLR
  • Commissioner of Lands -vs- Kunste Hotel Limited
    [1997] eKLR
  • Chepkorir Ndege -vs- IEBC & Clerk of The W. Pokot County Assembly
    [2017] eKLR
  • Papinder Kaur Atwal -vs- Manjit Singh Amrit
    (2014) EKLR
  • Anne Wanza and 3 others -vs- Kenya Railways Coop and another
    2015 eKLR
  • Bedrock Holdings Ltd -vs- Rallytec Motors Ltd
    (2019) eKLR
  • Benjamin K. Kipkulei vs County Government of Mombasa & another
    (2015) eKLR
  • Ngige -vs- Cabinet Secretary most of defima
    (2022) KEHC
  • Gabriel Mutava & 2 others -vs- Managing Director KPA
    (2016)
  • Anthony Ngure Murugu -vs- Kenya Railways Corporation
    (2022) eKLR
  • S. -vs- Boesak
    (2001) (1) S.A 912 CC
  • Christian Juma Wabwire -vs- AG
    (2019)
  • Col Peter Ngari Karume and 7 others -vs- AG
    Petition No. 128 of 2006
  • Peter Kimandiu -vs- Land Adjudication Officer Tigania West District and 4 others
    (2016) eKLR
  • Benson Njagi -vs- Wilson Miriti Thaara
    (2021) eKLR
  • Joseph Mathita Ikirima exparte Solomon Mworia Samuel
    (2020) eKLR
Jurisdiction invoked
Articles 22, 23, 24 and 165(2)(b) of the Constitution of Kenya; Environment and Land Court Act Section 13

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, "David Mungiria Mwongo v District Land Adjudication Officer Tigania West & 6 others [2022] KEELC 396 (KLR)", Case Analysis (2022). Constitutional Petition dated 11.6.2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/396/eng@2022-03-30

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