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ELCDismissedMeru ELC Petition No. 4 of 2019 (petition dated 5.5.2019)· [2022] KEELC 1086 (KLR)

Mike Makarena v District Land Adjudication and Settlement Officer East District & 3 others [2022] KEELC 1086 (KLR)

Environment and Land Court
2 March 2022
3,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The court dismissed a constitutional challenge to land adjudication in Tigania East because the petitioner proved no specific rights violation and never used the proper land dispute process.

What this practically means

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Executive summary

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The petitioner, describing himself as a representative of Persons Living With Disabilities and of residents of Tigania East District owning land in the Ngaremara/Gambella adjudication section, petitioned against an ongoing land adjudication and demarcation process. He alleged the 1st respondent was fraudulently demarcating land and allocating parcels to conspirators and land grabbers, contrary to customary rights and the Constitution, and sought declarations, a permanent injunction and conservatory orders halting the adjudication. The respondents replied that the adjudication section was lawfully gazetted on 11.3.2016 under Cap 284, that statutory procedures for notification, ascertainment and recording of interests were being followed, that over 40,000 parcels had been demarcated and over 1,200 disputes determined, and that many persons on the petitioner's list had already had parcels recorded while the petitioner himself had never lodged a claim. The court framed four issues, including whether the petition met the constitutional threshold. Applying Anarita Karimi Njeru and Mumo Matemu, the court held the petition failed the precision threshold: the petitioner produced no proof of registration as a person living with disability, no authority from the residents he purported to represent, and pleaded no specific personal or group right infringed or injury suffered. His claim was found to fall in the private domain, governed by the adjudication statutes with their internal dispute mechanisms, which he had not invoked. The burden of proving lack of notification and public participation lay on the petitioner and never shifted. The petition was found incompetent, lacking merit, and was dismissed with costs.

Key legal issues

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01

Whether the petition met the constitutional threshold

Holding

It did not; the petitioner failed the Anarita Karimi Njeru precision standard and lacked representative capacity

Reasoning

The petitioner pleaded no specific right infringed in his personal capacity or on behalf of an authorized group. He produced no registration as a person living with disability, no authority from the residents he claimed to represent, and no demonstration of personal injury. The demand letter annexed advanced a private claim, not a public interest one.

p. 4
02

Whether the petitioner pleaded and proved any constitutional infringement

Holding

No; the burden of proof lay on the petitioner and never shifted to the respondents

Reasoning

Under Section 107 of the Evidence Act the petitioner had to prove non-compliance with Section 5 of the Land Adjudication Act and Article 10. The respondents demonstrated gazettement, notices, and that many of the persons on the petitioner's list had already had parcels recorded, uncontroverted evidence. Allegations unsupported by proof could not sustain a constitutional claim.

p. 5
03

Whether the petition could bypass the internal land adjudication dispute mechanisms

Holding

No; ordinary adjudication disputes clothed as constitutional petitions are improper where alternative avenues exist

Reasoning

The court held that grievances over demarcation and ascertainment of rights belong within the statutory mechanisms under the Land Adjudication Act, including lodging claims and objections. The petitioner had not invoked those mechanisms or shown he was denied participation, and the court must guard against normal disputes being dressed as constitutional claims.

p. 5

Legal principles established

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  • A petitioner must plead with precision the specific constitutional provisions violated and the manner of violation, and prove them to the required standard.
  • A person suing in a representative or public-interest capacity must show authority from, and defined grievance of, the group represented.
  • A breach of a statute does not necessarily amount to a constitutional claim; ordinary land adjudication disputes must be pursued through the statutory internal mechanisms.

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 20(3)(b), 20(4), 21, 22, 22(4), 23, 40, 61, 159, 165, 165(2)(d), 258
  • Land Adjudication Act (Cap 284)Sections 3, 4, 5, 9, 10, 11, 13, 14, 15, 30
  • Land Consolidation Actgeneral
  • Evidence Act (Cap 80)Section 107
  • Constitution of Kenya, Rights and Freedoms (Protection Practice and Procedure) Rules 2013general
  • Civil Procedure RulesOrder 40

Cases cited (25)

  • County Government of Kiambu & 3 Others -vs- Robert N. Gakuru & Others
    [2017] eKLR
  • Law Society of Kenya -vs- Office of Attorney General & Another; Judicial Service Commission (Interested Party)
    [2020] eKLR
  • Centre for Rights Education and Awareness (CREAW) & Another -vs- Speaker of the National Assembly & 2 Others
    [2017] eKLR
  • Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Olympic Sports House Ltd -vs- School Equipment Centre Ltd
    [2012] eKLR
  • County Government of Meru & Another -vs- District Land Adjudication & Settlement Officer Tigania East Sub-County & 18 Others
    [2018] eKLR
  • Anarita Karimi Njeru -vs- Republic
    [1979] eKLR
  • Speaker of the National Assembly -vs- Karume
    [1992] eKLR
  • Lepore Ole Maito -vs- Letwat Kortom & 2 Others
    [2016] eKLR
  • Stanley Lezen Mliwa -vs- Leonard Kapala Makangalu & 2 Others
    [2007] eKLR
  • Dickson Mukwe Lukeine -vs- Attorney General & 4 Others
    [2012] eKLR
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Communications Workers Union & Another -vs- Communication Authorities of Kenya
    [2015] eKLR
  • James Ndugi & 4 Others -vs- Jamleck Waithaka Kinyua & 7 Others
    [2021] eKLR
  • Law Society of Kenya -vs- Commissioner of Lands & 2 Others
    Nakuru CC No. 464 of 2000
  • Javan Oscar Buleemi -vs- Permanent Secretary, Ministry of Internal Security & Provincial Administration & Others
    [2015] eKLR
  • Mwangaza L.P.O. Self Help Group -vs- Attorney General & 3 Others
    [2020] eKLR
  • Alfred Njau & Others -vs- City Council of Nairobi
    [1982] KAR 229
  • Charles Ratemo Nyambati -vs- Jackton Ocharo & 4 Others
    [2016] 3 KLR
  • Sostenah Ogero Taracha -vs- Ethics & Anti-Corruption Commission & Attorney General
    [2017] eKLR
  • Francis Oyagi & Samuel Motari Mangare & 2 Others
    [2018] eKLR
  • Sisilia Nyakoe & Another -vs- Attorney General & 4 Others
    [2021] eKLR
  • Isaiah Mbaabu & 2 Others -vs- Land Adjudication & Settlement Officer Igembe South District & 4 Others
    [2022] eKLR
  • Meru ELC Petition No. 7 of 2017
  • Meru ELC Petition No. 5 of 2019 (ruling of 24.5.2019)
Jurisdiction invoked
Articles 20, 21, 22, 23, 159, 165(2)(d) and 258 of the Constitution as read with the Constitution of Kenya (Protection of Rights and Freedoms) 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, "Mike Makarena v District Land Adjudication and Settlement Officer East District & 3 others [2022] KEELC 1086 (KLR)", Case Analysis (2022). Meru ELC Petition No. 4 of 2019 (petition dated 5.5.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1086/eng@2022-03-02

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