Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Constitutional Petition E010 of 2021 (formerly Eldoret ELC Constitutional Petition No. E010 of 2021)· [2022] KEELC 4866 (KLR)

Aengwo Torotich & 71 others v County Land Adjudication and Settlement Officer, Baringo & 5 others; Kuikui Adjudication Section & 3 others (Interested Parties)

Environment and Land Court
20 September 2022
4,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

The court dismissed 72 Baringo residents' land petition because they skipped the Land Adjudication Act's objection and appeal process before going to court.

What this practically means

#

Executive summary

#
Seventy-two petitioners, inhabitants of Kuikui Land Adjudication Section in Baringo County, petitioned the Environment and Land Court at Iten alleging that their land, including parcel number 1957, was covertly adjudicated by the wrong committee - Barwesa "A" Adjudication Committee - and allocated to the County Government of Baringo and interested parties as public utilities, in violation of Articles 10, 35, 40 and 47 of the Constitution. They sought declarations of illegality, revocation of titles, dissolution and reconstitution of the adjudication committee, an injunction, and an order compelling completion of the Kuikui adjudication. The Respondents opposed, contending the Barwesa boundary was lawfully amended in 2011, that affected persons including some petitioners lodged objections, that parcel 1957 was reserved as a public utility with the County registered as trustee, and that the petitioners had failed to exhaust the dispute resolution mechanism under the Land Adjudication Act. The court framed a single issue: whether the petitioners made out a case for the orders sought. Relying on the Karume principle and authorities on the Land Adjudication Act's elaborate statutory mechanism culminating in a final appeal to the Minister under section 29, the court found the petitioners knew of the impugned process, that their excuse for bypassing the statutory mechanism was unconvincing, and that the petition circumvented the LAA procedure and amounted to an abuse of court process. The petition was dismissed with costs to the Respondents.

Key legal issues

#
01

Whether the Petitioners were required to exhaust the dispute resolution mechanisms under the Land Adjudication Act before approaching the court

Holding

Yes; the petition was an attempt to circumvent the statutory dispute resolution procedure and constituted an abuse of court process

Reasoning

The court found evidence that the Barwesa boundary was amended in 2011, that some affected persons (including Petitioner David Chesire) lodged objections, and that the Petitioners therefore knew of the process. The LAA contains an elaborate mechanism from claims under section 13 through objections to a final appeal to the Minister under section 29. Having bypassed it, the Petitioners could not claim the petition was their only avenue.

p. 9
02

Whether the impugned adjudication was carried out secretly without the Petitioners' knowledge or participation

Holding

No; the evidence of the boundary amendment and objections by affected persons showed the Petitioners knew of the process

Reasoning

The Respondents produced a notice of amendment of the boundary (JOL 1(b)) and showed that objections were raised by some affected residents, including the 11th Petitioner. The court was therefore not satisfied the adjudication was covert, and found the Petitioners' excuse for not using the statutory mechanism unconvincing.

03

Whether the court had jurisdiction to entertain the constitutional petition over land within an ongoing adjudication process

Holding

The court declined to grant relief, holding the statutory procedure should have been strictly followed

Reasoning

Relying on the Karume principle and authorities on the Land Adjudication Act's elaborate dispute mechanism culminating in the Minister's final determination under section 29, the court held that grievances arising within an adjudication section must be channeled through that mechanism, with judicial review available only in appropriate cases.

p. 9

Legal principles established

#
  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • A party who fails to use the dispute resolution mechanism provided under the Land Adjudication Act cannot invoke constitutional jurisdiction as the only avenue of challenge

Court orders

#
  1. 1.The Petition is dismissed
  2. 2.Costs of the Petition awarded to the Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 35, 40, 47, 165
  • Land Adjudication Act (Cap 284)Sections 5, 6, 10, 13, 25(c), 26(1), 26, 29, 29(1)(b), 26A, 27, 28
  • Community Land Act No. 27 of 2016Sections 4, 5 and 6
  • Fair Administrative Action Act No. 4 of 2015Generally
  • Physical Planning Act No. 13 of 2019 / Physical Land Use and Planning ActSection 5
  • Survey Act Cap 280Generally
  • Land Act No. 6 of 2012Section 7

Cases cited (6)

  • Peter Mwau Muinde and Another v Insurance Regulatory Authority & others
    (2018) eKLR

    Requirement for specificity in constitutional petitions - identifying violated provisions, manner of violation and reliefs

  • Harun Mwau vs Peter Gastrow & others
    (2014) eKLR

    Constitution to be invoked where there is no other recourse for disposing of the matter

  • Daniel Musili Nyeki & 49 others v Cabinet Secretary of Lands & Settlement & Another; Benard Malonza Musya & 30 others (interested parties)
    (2021) eKLR

    The Land Adjudication Act contains a detailed dispute resolution mechanism delivering constitutional protection if followed through

  • Speaker of the National Assembly vs James Njenga Karume
    (1992) eKLR

    Clear statutory procedure for redress must be strictly followed

  • Robert Kulinga Nyamu vs Musembi Mutunga & another
    (2022) eKLR

    Elaborate dispute resolution under the Land Adjudication Act culminating in a final appeal to the Minister under section 29

  • Dume Deri Mumbo & 19 others vs Cabinet Secretary of Lands, Housing & Urban Development & 6 Others
    [2016] eKLR

    Court can interfere with decisions of bodies under the Act only by judicial review or on a new cause of action

Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya, 2010 (contravention of fundamental rights and freedoms under Article 40)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Aengwo Torotich & 71 others v County Land Adjudication and Settlement Officer, Baringo & 5 others; Kuikui Adjudication Section & 3 others (Interested Parties)", Case Analysis (2022). Environment and Land Constitutional Petition E010 of 2021 (formerly Eldoret ELC Constitutional Petition No. E010 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4866/eng@2022-09-20

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