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ELCDismissedPetition dated 26th November, 2018 (number not stated)· [2022] KEELC 710 (KLR)

Paul Njuguna Kamau v Tuleto Omerae & 3 others [2022] KEELC 710 (KLR)

Environment and Land Court
24 March 2022
1,384 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost his petition because he skipped the statutory appeal to the Minister, proving Kenyan courts enforce exhaustion of remedies strictly.

What this practically means

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Executive summary

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The 2nd, 3rd and 4th Respondents filed a Notice of Preliminary Objection dated 5th October, 2021 seeking dismissal of a petition dated 26th November, 2018 concerning land known as NRK/Cis-Mara/Kipise/57, in which the Petitioner alleged violation of his constitutional rights through an unauthorised transfer and a hearing conducted without affording him an opportunity to be heard. The Respondents argued that the Land Adjudication Act, Cap 284 provides an elaborate dispute-resolution mechanism: objection No. 874 was filed on 14th December, 2007, determined under section 13(3), and ruled in favour of the 1st Respondent on 15th September, 2008, but the Petitioner never appealed to the Minister as required by section 29. Relying on Speaker of National Assembly v Karume, they contended that where a clear statutory procedure for redress exists it must be strictly followed, ousting the court's jurisdiction. The Petitioner countered that the adjudication process having been completed and title issued, there was no bar to a constitutional claim. The court, after restating the nature of a preliminary objection from Mukisa Biscuits, held that the Petitioner had not exhausted the avenues for redress under section 29, that the petition was therefore incompetent, and that the court had no jurisdiction to entertain it. The preliminary objection succeeded; the petition was dismissed with costs to the 2nd, 3rd and 4th Respondents.

Key legal issues

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01

Whether the court has jurisdiction to entertain a constitutional petition where the petitioner did not exhaust the appeal mechanism in section 29 of the Land Adjudication Act

Holding

The petitioner did not exhaust the avenues for redress under section 29 and the court therefore lacks jurisdiction

Reasoning

The Land Adjudication Act provides an objection procedure under section 26 and an appeal to the Minister under section 29, whose order is final. Objection No. 874 was determined in favour of the 1st Respondent in 2008, yet no appeal to the Minister was filed. Where a clear statutory procedure for redress exists it must be strictly followed, so the petition cannot lie before the court.

p. 2
02

What constitutes a preliminary objection

Holding

A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised

Reasoning

The court adopted the classic definitions in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and the formulation by Sir Charles Newbold, JA, supplemented by Quick Enterprises Ltd v Kenya Railways Corporation, that preliminary points should dispose of the matter without the court ascertaining facts from outside the pleadings.

p. 2

Legal principles established

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  • Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • A party aggrieved by a determination of an objection under section 26 of the Land Adjudication Act must appeal to the Minister under section 29 within sixty days

Court orders

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  1. 1.Notice of preliminary objection dated 5th October, 2021 succeeds
  2. 2.Petition dated 26th November, 2018 is dismissed with costs to the 2nd, 3rd and 4th respondents

Authorities

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Legislation

  • Land Adjudication Act, Cap 284section 29
  • Land Adjudication Act, Cap 284section 26
  • Land Adjudication Act, Cap 284section 13(3)

Cases cited (6)

  • Speaker of National Assembly versus Karume
    [1992] KLR
  • Republic versus Ministry of Interior and Coordination of National Government Exparte ZTE Corporation & Another
    [2014] eKLR
  • Samuel Kamau & Another versus Kenya Commercial Bank & 2 Others
  • Kinyamal Ole Tare versus Sotua Sakana Muyia
    [2015] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
Jurisdiction invoked
Not expressly stated; court determines its own jurisdiction under section 29 of the 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, "Paul Njuguna Kamau v Tuleto Omerae & 3 others [2022] KEELC 710 (KLR)", Case Analysis (2022). Petition dated 26th November, 2018 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/710/eng@2022-03-24

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