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ELCDismissedMeru ELC Constitutional Petition (amended petition dated 28.7.2020)· [2022] KEELC 2112 (KLR)

Johnson Mbaabu Mburugu & another v Mathew Nabea & 20 others [2022] KEELC 2112 (KLR)

Environment and Land Court
19 January 2022
7,922 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a landowners' constitutional petition, ruling they had to finish the Land Adjudication Act process before going to court.

What this practically means

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Executive summary

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By an amended petition dated 28.7.2020 under Articles 22, 23, 40, 47 and related provisions, the petitioners, recorded owners of Parcels 1079 and 5165 (5 acres) in the former Ruiri Rwarera adjudication section, challenged the 13.2.2016 administrative decision hiving off part of that section into a new Mbwaa I adjudication section and the subsequent recording of new parcel numbers in favour of the 1st–19th respondents. They sought declarations of breach, certiorari to quash the creation of the new section and the subdivisions, reinstatement of their land, prohibition, eviction, injunction, conservatory orders and general damages. The 1st–19th respondents claimed to be occupants and bona fide purchasers; the 20th (and 21st) respondents admitted the petitioners' prior recordings but justified the new section by reference to a Court of Appeal consent order of 10.10.2014 in Civil Appeal No. 129 of 2005, and urged exhaustion of the Land Adjudication Act mechanisms. The court found the notice creating Mbwaa I complied with Section 5 of Cap 284; that the petitioners knew of and participated in the process through their authorized agent, a land adjudication committee member who lodged pending A/R objections; that the consent order was binding and the former parcel numbers became invalid by operation of law; that statutory remedies had not been exhausted as required by Section 9 of the Fair Administrative Actions Act; and that the new parcel numbers were not proved by authenticated records. The petition was dismissed with no order as to costs, the adjudication process under Cap 284 being left to take its course.

Key legal issues

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01

Whether the petition met the constitutional threshold

Holding

Yes; a earlier ruling of 26.2.2020 had already found the petition met the Anarita Karimi Njeru / Mumo Matemu threshold.

Reasoning

By a ruling delivered on 26.2.2020 the same court found that the petition disclosed with reasonable precision the provisions infringed and the manner of infringement, satisfying the standard in Anarita Karimi Njeru and Mumo Matemu. That finding disposed of the first issue in the affirmative without re-litigation.

p. 7
02

Whether the notice of 13.2.2016 creating Mbwaa I adjudication section was illegal, secret, fraudulent or unconstitutional

Holding

No - the notice complied with Section 5 of the Land Adjudication Act and the petitioners were aware of and participated in the process through their authorized agent Washington M'Nairobi, a committee member.

Reasoning

The notice defined the area, date, time and place and called for claims under Section 5 of Cap 284. The petitioners pleaded no particulars of illegality and produced no evidence against the notice. Their agent, a relative and land adjudication committee member, lodged A/R objections on their behalf, proving knowledge and participation. The allegation of secrecy was found not factual.

p. 8
03

Effect of the Court of Appeal consent order of 10.10.2014 on the former parcel numbers 1079 and 5165

Holding

The consent order was binding; the former parcel numbers were set aside and became invalid by operation of law, and could not be imported into the new adjudication section.

Reasoning

Clause 6 of the consent required numbers in the hived-off portion to be set aside and land adjudicated afresh. The consent had not been appealed, reviewed or set aside, so it bound the parties and the court. Under Section 23 of Cap 284 the old registers could not be used in the new section; the process started afresh with new numbers to all claimants.

p. 10
04

Exhaustion of alternative remedies / ripeness

Holding

The petition was premature: the petitioners' A/R objections were pending and unexhausted statutory remedies existed under the Land Adjudication Act; no exceptional circumstances were shown under Section 9 of the Fair Administrative Actions Act.

Reasoning

The A/R objections Nos. 127/128/16/2017 lodged by the petitioners' agent were still pending and their grounds undisclosed. Sections 6 to 27 of Cap 284 provide committee, arbitration board, objection, appeal and review mechanisms. Article 159(2)(c) requires promotion of ADR mechanisms. Constitutional jurisdiction should be avoided where adequate statutory fora exist.

p. 9
05

Whether the new parcel numbers and registrations in favour of the 1st–19th respondents were proved

Holding

No - the petitioners failed to produce authenticated records showing the new parcels were issued; the court cannot quash or cancel unproven administrative acts.

Reasoning

The annextures JMM 10(a) and (b) sketch maps were neither authenticated nor certified by the 20th respondent, and neither side produced the adjudication records. The court could not make declarations on non-factual evidence or quash proceedings not before it under Order 53 Rule 7 of the Civil Procedure Rules.

p. 10

Legal principles established

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  • A consent order of the Court of Appeal binds the court below unless appealed, reviewed or set aside.
  • Judicial review or constitutional relief against administrative action under the Land Adjudication Act requires exhaustion of the statutory remedies absent exceptional circumstances.
  • A party alleging violation of rights bears the burden of proving each proposition pleaded.
  • Courts cannot make constitutional findings in a factual vacuum.

Court orders

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  1. 1.The petition is dismissed in its entirety.
  2. 2.No order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 19, 20, 21, 22, 23, 24, 27, 40, 47, 50, 156(4), 159(1),(2)(a),(c),(d),(e), 165(3)(b), 232, 258, 259
  • Land Adjudication ActCap 284, Sections 5, 6, 8, 9, 10, 12, 13, 15, 17, 18, 19, 20, 21, 22, 23, 26, 27
  • Fair Administrative Actions ActSection 9(2) / Section 9 (2015)
  • Evidence ActSection 107(1)
  • Civil Procedure RulesOrder 2 rules 1–10; Order 53 Rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 10, 11, 15

Cases cited (16)

  • Ongeri –vs- Greenbags Holdings & 2 Others
    [2011] 1 KLR 108
  • Independent Policing Oversight Authority & Another –vs- Attorney General & Others
    [2015] 1 E.A 185
  • Muhammed Sheria & 2 Others –vs- Simon Kipkorir Sang & 5 Others
    eKLR
  • Kenya Human Rights Commission –vs- Non-Governmental Organization Co-ordination Board
    [2016] eKLR
  • Alex Wainaina T/A John Commercial Agencies –vs- Jason Mwangi Wanjihia
    [2015] eKLR
  • Olive Mwihaki Mugenda & Another –vs- Okiya Omtata Okoiti & 4 Others
    [2016] eKLR
  • National Bank of Kenya –vs- Nguru Mutonya
    [2019] eKLR
  • Anarita Karimi Njeru –vs- Republic
    [1976-1979] eKLR / [1979] eKLR
  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR / [2014] eKLR
  • Samson Muriungi Mwirebua –vs- Silas Kimathi Mutonga & another
    [2019] eKLR
  • Edward Akong'o Oyugi & 2 Others –vs- Attorney General
    [2019] eKLR
  • Gabriel Mutava & 2 Others –vs- Kenya Ports Authority & Another
    [2016] eKLR
  • Communications Commission of Kenya & 5 Others –vs- Royal Media Services & 5 Others
    [2014] eKLR
  • Flora Wasike –vs- Destimo Wamboke
    [1988] 1 KAR 625
  • Brooke Bond Leibig (T) Ltd –vs- Mallya
    [1975] E.A.
  • Nairobi Court of Appeal Civil Appeal No. 129 of 2005 (consent order of 10.10.2014)
    Civil Appeal No. 129 of 2005
Jurisdiction invoked
Article 165(3)(b) of the Constitution (enforcement of Bill of Rights); Articles 22 and 23

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Mbaabu Mburugu & another v Mathew Nabea & 20 others [2022] KEELC 2112 (KLR)", Case Analysis (2022). Meru ELC Constitutional Petition (amended petition dated 28.7.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2112/eng@2022-01-19

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