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ELCStruck OutNot stated in the excerpt· [2022] KEELC 1708 (KLR)

Samparuan Ole Kijape & 30 others v Cabinet Secretary, Ministry of Lands & Physical Planning & 25 others [2022] KEELC 1708 (KLR)

Environment and Land Court
9 February 2022
3,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a petition challenging land adjudication in Naikarra because the landowners had not first used the dispute procedures set out in the Land Adjudication Act.

What this practically means

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Executive summary

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The Petitioners, land owners in Naikarra Adjudication Section, filed a petition dated 13th September 2019 seeking declarations that the demarcation, survey and adjudication exercise in the section was unconstitutional, null and void; orders for a fresh adjudication process; the appointment of a new Land Adjudication Officer under section 4 of Cap 284; and the disbandment and reconstitution of the Land Adjudication Committee (5th – 26th Respondents). The 5th – 26th Respondents filed a Notice of Preliminary Objection on 13th October 2021, contending that the court lacked jurisdiction by virtue of section 30(1) of the Land Adjudication Act, Cap 284, and that the petition was incompetent and an abuse of process. The court framed two issues: its jurisdiction, and the sustainability of the objection. Relying on Mukisa Biscuits, Lillian S, and the exhaustion doctrine as expressed in Hulbhai Gedi Abdille and Muthinja Kabiru, the court held that disputes arising from the adjudication process must be channeled through the statutory objection and appeal machinery in sections 26 and 29 of the Act. It further held, following Tobias Achola Osindi, that even consent under section 30 could not be used to bypass the statutory machinery. Finding that the Petitioners had prematurely invoked the court's jurisdiction, the court upheld the preliminary objection and struck out the Petition with costs to the Respondents.

Key legal issues

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01

Jurisdiction of the ELC over a constitutional petition challenging an adjudication process

Holding

The court lacked jurisdiction because the Petitioners had not exhausted the dispute resolution mechanisms under the Land Adjudication Act (sections 26 and 29), so the jurisdiction was invoked prematurely.

Reasoning

The court reasoned that although it is clothed with specialized jurisdiction over land and environment matters, it ought not to intervene until statutory dispute resolution mechanisms are exhausted. Sections 26 and 29 of Cap 284 provide objection and appeal procedures; a grievance about the adjudication process, no less than one about title, must follow those mechanisms. Consent under section 30 cannot be used to bypass the machinery.

p. 4
02

Sustainability of the preliminary objection

Holding

The preliminary objection was sustainable as a pure point of law raising lack of jurisdiction.

Reasoning

Applying Mukisa Biscuits and the Lillian S principle that jurisdiction is everything, the court found the objection rested on the doctrine of exhaustion, a pure question of law. Having found jurisdiction prematurely invoked, the court upheld the objection and struck out the Petition with costs.

p. 4

Legal principles established

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  • A party aggrieved by an error in the land adjudication process must exhaust the dispute resolution mechanism set out in the Land Adjudication Act before approaching the court, even where the grievance concerns the process rather than an interest in a particular parcel
  • Consent of the adjudication officer under section 30 of the Land Adjudication Act does not permit a party to bypass the statutory dispute resolution machinery
  • A preliminary objection must raise a pure point of law on assumed pleaded facts

Court orders

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  1. 1.The Petition is struck out with costs to the Respondents

Authorities

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Legislation

  • Land Adjudication Actsection 4
  • Land Adjudication Actsection 26
  • Land Adjudication Actsection 29
  • Land Adjudication Actsection 30(1)
  • Constitution of Kenya, 2010Article 165(3)(b)
  • Constitution of Kenya, 2010Article 159
  • Interpretation and General Provisions Actsection 38(2)

Cases cited (18)

  • Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd
    (1996) EA 696
  • Owners of the Motor Vessel Lillian "S" vs Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Justus Ntuiti vs Mwirichia Kaumbuthu
    [2004]e
  • Benjamin Okwaro Estika vs Christopher Anthony Ouka & Another
    [2013]eKLR
  • Kilusu Julius Sile & 60 Others vs Chairperson, Oloirien Adjudication Section "B" Committee & 3 Others
    [2016]eKLR
  • Mohamed Ahmed Khalid (Chairman) & 10 Others vs Director of Land Adjudication & 2 Others
    [2013]eKLR
  • Lemitei Ole Koros & Another vs A.G. & 3 Others
    [2016]eKLR
  • Republic vs Musanka Ole Runkes Tarakwa & 5 Others Ex-Parte Joseph Lesalol Lekitio & Others
    [2015]eKLR
  • Geoffrey Andare vs A.G. & 2 Others
    [2016]eKLR
  • Standard Limited & 2 Others vs Christopher Ndarathi Murungaru
    [2016]eKLR
  • A.G. vs Isaiah Muturi Mucee
    [2018]eKLR
  • Republic vs Parliamentary Service Commission & 2 Others; Morris Kimuli & Another (Interested Party)
    [2021]eKLR
  • Republic vs Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 Others Ex-parte Alfred Kiptoo Keter & 3 Others
    [2018]eKLR
  • Mohamed Ali Baadi & Others vs A.G. & 11 Others
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017]eKLR
  • Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others
    [2015]eKLR
  • Kinyamal Ole Tare v Sotua Sakana Muyia
    [2015]eKLR
  • Tobias Achola Osindi & 13 others versus Cypriano Otieno Ogalo & 6 Others
    H.C.C.NO 4 OF 2011 KISII
Jurisdiction invoked
Article 165(3)(b) of the Constitution of Kenya, 2010 (as urged by Petitioners); Land Adjudication Act, Cap 284, sections 26, 29 and 30

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, "Samparuan Ole Kijape & 30 others v Cabinet Secretary, Ministry of Lands & Physical Planning & 25 others [2022] KEELC 1708 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1708/eng@2022-02-09

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