Johnson Mbaabu Mburugu & another v Mathew Nabea & 20 others [2022] KEELC 2112 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition met the constitutional threshold
Yes; a earlier ruling of 26.2.2020 had already found the petition met the Anarita Karimi Njeru / Mumo Matemu threshold.
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.
Whether the notice of 13.2.2016 creating Mbwaa I adjudication section was illegal, secret, fraudulent or unconstitutional
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.
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.
Effect of the Court of Appeal consent order of 10.10.2014 on the former parcel numbers 1079 and 5165
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.
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.
Exhaustion of alternative remedies / ripeness
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.
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.
Whether the new parcel numbers and registrations in favour of the 1st–19th respondents were proved
No - the petitioners failed to produce authenticated records showing the new parcels were issued; the court cannot quash or cancel unproven administrative acts.
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.
Legal principles established
#- 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
#- 1.The petition is dismissed in its entirety.
- 2.No order as to costs.
- Jurisdiction invoked
- Article 165(3)(b) of the Constitution (enforcement of Bill of Rights); Articles 22 and 23
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.