Susan Mary Naitore Thimangu (Suing as next Friend of Kennah Martin Thimangu Kauyangi) v Land Adjudication Officer Tigania West & another; Siriaka Murithi Karithi (Interested Party) [2022] KEELC 1939 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land dispute application because the owner had to finish the statutory Land Arbitration Board appeal before going to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the miscellaneous application was brought through the proper procedure
It was not. There was no substantive suit, petition or judicial review proceedings (no leave under Order 53) in which the interim orders could issue.
The applicant sought stay, injunction and an order compelling issuance of consent by way of a bare miscellaneous application with no substantive motion. Judicial review requires leave where prerogative orders are sought; conservatory orders require a constitutional petition. The court could not grant interlocutory relief in a vacuum, and statutory mechanisms under the Land Consolidation Act had not been exhausted.
Whether the court can compel issuance of a consent under Section 8 of the Land Consolidation Act
No. Judicial review proceedings are not suits; a consent to institute a suit is required only under Section 26 of the Act, and the remedy for a withheld consent is mandamus.
The court distinguished between suits under the Civil Procedure Act, which may require consent under Section 26, and judicial review proceedings, which require only a decision sought to be quashed. The applicant should have sought mandamus against the officer withholding the consent, not an order in a miscellaneous application.
Whether the court should exercise jurisdiction while an appeal is pending before the Land Arbitration Board
No. The applicant must exhaust the statutory dispute-resolution mechanisms and cannot litigate in two fora simultaneously.
The applicant had lodged an appeal to the Land Arbitration Board on 24.10.2021 which was pending. Having submitted to that process, he could not simultaneously seek court orders staying it. The Land Consolidation Act provides internal mechanisms and timelines which must be invoked before resorting to the court's inherent jurisdiction.
Whether the court's supervisory jurisdiction under Article 165(6) and (7) was properly invoked
Although the court has the powers, its jurisdiction must be invoked in the right manner; here it was not.
The applicant argued that adjudication officers exercise quasi-judicial functions amenable to supervision. The court accepted it has powers but held the applicant failed to invoke them properly - no leave for prerogative orders, no constitutional petition, and no exhaustion of statutory remedies.
Legal principles established
#- Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
- A party must exhaust internal statutory dispute-resolution mechanisms before invoking the court's inherent jurisdiction
- A party cannot litigate simultaneously before the court and a statutory tribunal; he cannot approbate and reprobate
Court orders
#- 1.The notice of motion dated 18.10.2021 is found incompetent and without merit and is dismissed with costs.
- Jurisdiction invoked
- Article 165 of the Constitution (Environment and Land Court); Article 159 and Article 165(6) and (7) invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Mary Naitore Thimangu (Suing as next Friend of Kennah Martin Thimangu Kauyangi) v Land Adjudication Officer Tigania West & another; Siriaka Murithi Karithi (Interested Party) [2022] KEELC 1939 (KLR)", Case Analysis (2022). Meru ELC Misc. Application (notice of motion dated 18.10.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1939/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.