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ELCDismissedEnvironment and Land Constitutional Petition 13 of 2022· [2022] KEELC 13482 (KLR)

Kisang v Land Adjudication Officer, Elgeyo Marakwet & 3 others

Environment and Land Court
12 October 2022
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's land adjudication process has a final stage: once the minister decides your land appeal, a constitutional petition cannot be used to relitigate who owns the plot.

What this practically means

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Executive summary

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The petitioner sought a declaration that he was the lawful owner of plot No 2518 Chesoi Adjudication Section, contending the land was cleared by five clan households in 1965, that he inherited his father's share, and that the land was adjudicated in his favour before a complaint, objection and ministerial appeal (Minister Case No 540 of 2020) awarded it to the 3rd and 4th respondents. He alleged denial of fair hearing and violation of his right to property. The respondents opposed, arguing the petition offended section 29(b) of the Land Adjudication Act (finality of the minister's decision), failed to meet the constitutional pleading threshold, was res judicata given prior litigation by the petitioner's father in Iten RMCC No 46 of 2005, and was in substance judicial review disguised as a constitutional petition. The 1st and 2nd respondents also contended the court lacked jurisdiction for want of the land adjudication officer's consent. Waithaka J, adopting Obaga J's earlier ruling refusing conservatory reliefs, held the petition was judicial review disguised as a constitutional petition. Applying Timotheo Makenge v Manunga Ngochi and Municipal Council of Mombasa v Republic, the court held that the Land Adjudication Act prescribes a complete code with the minister's decision final, and that a petition cannot challenge the merits of that decision. The petition was found to lack merit and was dismissed with costs.

Key legal issues

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01

Whether the petition could challenge the merits of the minister's decision

Holding

The petition, to the extent it challenges the merits of the minister's final decision, offends section 29(b) of the Land Adjudication Act and lacks merit

Reasoning

The court held that the Land Adjudication Act provides a complete code with the minister's decision final. The petitioner had gone through the committee, objection and ministerial appeal stages and lost. A constitutional petition cannot be used as an appeal against the merits of that final decision; judicial review is confined to process, not merits.

p. 4
02

Whether the petition met the constitutional pleading threshold

Holding

The petition failed to plead with precision the rights violated, by whom and how, and was in substance a judicial review application disguised as a constitutional petition

Reasoning

Relying on the earlier ruling of Obaga J refusing conservatory reliefs, the court found the petitioner was heard at every stage of the adjudication process and the dispute had been litigated before. The petition did not demonstrate any procedural impropriety by the tribunals under the Act.

p. 4

Legal principles established

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  • The Land Adjudication Act prescribes a complete code for adjudication of land claims, with the minister's appeal decision being final
  • Judicial review concerns the decision-making process, not the merits of the decision

Court orders

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  1. 1.The petition is dismissed
  2. 2.The petitioner shall pay costs of the petition

Authorities

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Legislation

  • Land Adjudication ActCap 284, section 29(b)
  • Constitution of KenyaArticles 20, 21, 22, 23, 40(2), 165(3)(a)

Cases cited (4)

  • Republic vs County Council of Kwale & Another Ex parte Kondo & 57 others
    Mombasa HCMCA No 384 of 1996

    Petitioner ought to have filed judicial review proceedings to quash the impugned decisions

  • Wilson Njuguna Gakuru & Another vs National Transport and Safety Authority & 2 others
    (2016) eKLR

    Judicial review as the appropriate remedy for quashing administrative decisions

  • Timotheo Makenge v Manunga Ngochi
    (1978) KLR 53

    Land Adjudication Act is a complete code; minister's orders on appeal are final

  • Municipal Council of Mombasa v Republic & Another
    (2002) eKLR

    Judicial review concerns the decision-making process, not the merits of the decision

Jurisdiction invoked
Articles 20, 21, 22, 23, 40(2) and 165(3)(a) of the Constitution (invoked by the petitioner)

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, "Kisang v Land Adjudication Officer, Elgeyo Marakwet & 3 others", Case Analysis (2022). Environment and Land Constitutional Petition 13 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13482/eng@2022-10-12

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