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ELCDismissedPetition dated 27.6.2016 (Meru ELC)· [2022] KEELC 2283 (KLR)

Jacob Nakunyu & 121 others v District Land Adjudication & Settlement Officer Imenti Central District & another; Thiakunu Mwirabua & 1833 othersn(Interested Parties) [2022] KEELC 2283 (KLR)

Environment and Land Court
19 January 2022
6,423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed landowners' constitutional challenge because they never participated in the statutory land adjudication process before claiming their rights were violated.

What this practically means

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Executive summary

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The petitioners, members of the Imenti sub-tribe of the Ameru community, petitioned the Environment and Land Court at Meru claiming that the 1st respondent arbitrarily, secretly and unprocedurally hived out Mbwaa 'A' adjudication section from the former Ruiri/Rwarera adjudication section, thereby depriving them of their land in favour of the Tigania sub-tribe. They sought conservatory orders, a declaration of ownership, certiorari to quash the decision, and a permanent injunction against issuance of new parcel numbers. The respondents and interested parties, including the County Government of Meru and over 1,800 residents, opposed, showing that the new section was created on 13.2.2016 under Section 5 of the Land Adjudication Act (Cap 284) in compliance with a consent order in Nairobi Civil Appeal No. 129 of 2005, which nullified the petitioners' earlier parcel numbers and was never set aside or appealed. The court framed three issues: whether the petition raised constitutional questions, whether the 1st respondent violated rights in creating the section, and whether any violation was proved. It held that although the petition lacked precision, it should be sustained on substance; but on the merits, the 1st respondent acted within express and implied statutory powers and in obedience to a binding consent order. The petitioners never participated in the adjudication process, lodged no claims with the recording officer, and gave no particulars or proof of fraud or eviction. Their unascertained interests were not protectable under Article 40. The petition was dismissed with no order as to costs and existing interim orders were lifted.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition (precision of pleading)

Holding

The petition lacked clarity and specificity, but the court sustained it since respondents were able to respond and courts should look at substance over form

Reasoning

The court acknowledged the petition lacked precision, with key details left to witness statements and affidavits. However, no party indicated inability to respond, and citing Nation Media Group and Mumo Matemu, the court held a land petition should be sustained rather than dismissed on technicalities of form.

p. 9
02

Whether the 1st respondent violated constitutional rights by creating Mbwaa 'A' adjudication section

Holding

No violation: the section was established under Section 5 of the Land Adjudication Act pursuant to a Court of Appeal consent order that remains binding and was never set aside

Reasoning

The consent order nullified the petitioners' earlier parcel numbers and mandated a new adjudication section. The 1st respondent had express and implied statutory powers to issue the notification, and the petitioners neither attacked the notice's contents nor showed ultra vires conduct, bias or lack of public participation.

p. 11
03

Whether petitioners proved violation of their Article 40 property rights

Holding

No: they failed to discharge the burden of proof, having never participated in the adjudication process or lodged claims with the recording officer

Reasoning

Ascertainment of land rights within an adjudication area is reserved to officers and bodies under Cap 284. The petitioners produced no evidence of claims lodged, evictions reported, or particulars of fraud. Their unascertained interests were not yet protectable under Article 40, and they failed to prove their case on a balance of probability.

p. 12

Legal principles established

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  • A party claiming land rights within a statutory adjudication process must first participate in that process, including lodging a claim with the recording officer, before claiming violation of Article 40 rights
  • Fraud, illegality and mistake must be specifically pleaded and specifically proved
  • No constitutional rights are contravened by a judgment or order that is wrong but appealable - a consent order not set aside binds the parties
  • Where a written law confers a power, all powers necessary to exercise it are deemed conferred (implied powers)

Court orders

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  1. 1.The petition is dismissed with no order as to costs
  2. 2.Any existing orders are hereby lifted

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 24(1), 40, 61(1), 63(3), 165(3)(b), 174
  • Land Adjudication Act (Cap 284)Sections 3, 5, 6, 13, 13(3), 15, 20, 21, 22, 23, 24, 26, 29, 48
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10
  • Interpretation and General Provisions ActSection 48
  • Evidence ActSections 107, 109

Cases cited (26)

  • Anarita Karimi Njeru –vs- Republic
    [1997] KLR 154
  • Mumo Matemu –vs- Trustee Society of Human Rights Alliance
    [2014] eKLR
  • Nation Media Group Ltd. –vs- Attorney General
    [2007] 1 E.A 261
  • Nicholas Hendrick Claassen –vs- Commissioner for land & 4 Others
    [2016] eKLR
  • Ikiiya Omtatah Okoiti –vs- Kenya Power & Lighting Company Ltd & 10 Others
    [2018] eKLR
  • Githunguri Dairy Farmers Society Ltd –vs- Attorney General & 2 Others
    [2016] eKLR
  • Flora Wasike –vs- Destimo Wamboke
    [1988] 1 KAR 625
  • Moharaj –vs- Attorney General of Trinidad of Tobago
    [1979] AC 385
  • Trusted Society of Human Rights Alliance –vs- Attorney General & 2 Others
    [2013] eKLR
  • Leonard Otieno –vs- Airtel Kenya ltd
    [2018] eKLR
  • Morjaria –vs- Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Tobias Achola Osindi & 13 Others –vs- Cyprian Otieno Ogalo & 6 Others
    [2013] eKLR
  • Mary Jemutai Tonje –vs- Raphael Chebii & 5 others
    [2018] eKLR
  • Robert N. Gakuru & Others –vs- Kiambu County Government & 3 Others
    [2014] eKLR
  • Sirikwa Squatters –vs- Commissioner for lands & 9 Others
    E&L Petition No. 4 of 2016
  • County Government of Meru & Another –vs- The District Land Adjudication & Settlement Officer Tigania East Sub-County and Others
    Petition 7 of 2017
  • Speaker of the National Assembly –vs- James Njenga Karumu
    [1992] eKLR
  • Mike Makarena –vs- District Land Adjudication & Settlement Officer Tigania East & 3 Others
    [2020] eKLR
  • Dickson Mukwe Lukeine –vs- Attorney General & 4 Others
    [2012] eKLR
  • Grayo Gepkemoi Kiplagat –vs- Zakayo Chepkonga Cheruiyot
    [1979] eKLR (also cited as [2021] eKLR)
  • Mumo Matemo –vs- Truced Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Godfrey Paul Okutoyi & Others –vs- Habil Olaka & Another
    [2018] eKLR
  • Benard Murage –vs- Fine Serve Africa & Others
    [2015] eKLR
  • Patrick Mbau Karanja –vs- Kenyatta University
    [2012] eKLR
  • William Yator Kaino –vs- Masai Cheboi & 3 Others
  • Peter Muturi Njuguna –vs- Kenya Wildlife Service
    [2017] eKLR
Jurisdiction invoked
Article 165(3)(b) of the Constitution

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, "Jacob Nakunyu & 121 others v District Land Adjudication & Settlement Officer Imenti Central District & another; Thiakunu Mwirabua & 1833 othersn(Interested Parties) [2022] KEELC 2283 (KLR)", Case Analysis (2022). Petition dated 27.6.2016 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2283/eng@2022-01-19

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