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ELCStruck OutEnvironment and Land Judicial Review Case E002 of 2022· [2022] KEELC 14603 (KLR)

Mutungi (The Administrator of the Estate of Mutungi Kimeu Makau - Deceased) v Adjudication Officer, Ndiani Adjudication Section & 7 others

Environment and Land Court
2 November 2022
4,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute case because the owner skipped the required land adjudication appeal process before going to court.

What this practically means

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Executive summary

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The ex parte applicant, administrator of the estate of Mutungi Kimeu Makau, sought leave to apply for judicial review orders of certiorari, mandamus and prohibition to quash the Ndiani Adjudication Board's decision of 10 November 2016, compel compliance with colonial-era court decisions (Kilungu Courts, Machakos Civil Appeal No 170 of 1965 and Nairobi Civil Appeal No 163 of 1967 by Justice Trevelyan), and bar the Chief Land Registrar from processing title deeds for parcels 1275, 1371, 1372, 1373 and 1374 Ndiani Adjudication Section. The 1st to 5th respondents raised a preliminary objection on grounds of non-exhaustion of the dispute resolution mechanism under the Land Adjudication Act (Cap 284) and non-compliance with Section 29. The applicant admitted filing an appeal to the Minister on 1 July 2021 which remained undetermined, explaining the delay by his late father's illness. Murigi J, applying Mukisa Biscuits, Oraro v Mbaja, Karume, Muthinja Kabiru, Hulbhai Gedi Abdille, Lillian S and Samuel Kamau Macharia, held that the applicant had not exhausted the statutory avenues in sections 26 and 29, and had further failed to obtain the mandatory consent of the adjudication officer under Section 30 before instituting proceedings concerning land in an adjudication section. The Court therefore lacked jurisdiction, the jurisdiction having been invoked prematurely. The preliminary objection was upheld and the judicial review application was struck out with costs to the respondents.

Key legal issues

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01

Exhaustion of statutory dispute resolution mechanisms under the Land Adjudication Act

Holding

The Applicant had not exhausted the mechanisms in sections 26 and 29 because his appeal to the Minister was still pending; the court could not intervene.

Reasoning

Sections 26 and 29 provide an elaborate mechanism: objection to the adjudication officer, appeal to the Minister whose orders are final. The Applicant filed an appeal to the Minister on 1 July 2021 which remained undetermined. Following Karume, Muthinja Kabiru and Hulbhai Gedi Abdille, courts are fora of last resort and must not intervene while the statutory avenue is live.

02

Jurisdiction premised on Section 30 consent of the Land Adjudication Act

Holding

The Applicant was in essence challenging the decision rather than the decision-making process, without the mandatory written consent of the adjudication officer, so the Court lacked jurisdiction.

Reasoning

Section 30 bars instituting, and courts from entertaining, civil proceedings concerning an interest in land in an adjudication section until the register becomes final under section 29(3). The register had not become final since the Minister's appeal was pending. Without the consent, the Court's jurisdiction was never properly clothed.

p. 9
03

Nature of a preliminary objection

Holding

A preliminary objection must be a pure point of law, per Mukisa Biscuits and Oraro v Mbaja.

Reasoning

The court recited the classic statements of Law JA and Newbold JA in Mukisa Biscuits and Ojwang J in Oraro v Mbaja, confirming that a preliminary objection cannot rest on contested facts, before upholding the respondents' objection on the pure questions of exhaustion and jurisdiction.

p. 4

Legal principles established

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  • Where a statute provides a dispute resolution mechanism, a party must exhaust it before invoking the court's jurisdiction
  • Consent in writing of the adjudication officer is a precondition to instituting civil proceedings concerning land in an adjudication section

Court orders

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  1. 1.The ex parte Applicant's Judicial Review application for certiorari, mandamus and prohibition dated 22nd February 2022 is struck out with costs to the Respondents

Authorities

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Legislation

  • Land Adjudication ActPreamble
  • Land Adjudication ActSection 20
  • Land Adjudication ActSection 22
  • Land Adjudication ActSection 26
  • Land Adjudication ActSection 29
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 30
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 165(6)
  • Constitution of KenyaArticle 165(7)
  • Fair Administrative Actions Act

Cases cited (13)

  • Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Oraro vs Mbaja
    (2005) eKLR

    A preliminary objection must not be blurred with factual details requiring proof

  • Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille
    [2017] eKLR

    Exhaustion doctrine - pursue adequate alternative forum before invoking court process

  • National Assembly vs James Njenga Karume
    (1992) 3 KLR

    Where a clear procedure for redress is prescribed, it must strictly be followed

  • Geoffrey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 others
    [2015] eKLR

    Courts are fora of last resort; exhaustion ensures diligence within statutory mechanisms

  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction must be raised at the earliest opportunity; without it a court downs tools

  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR

    Jurisdiction goes to the heart of the matter; a court without jurisdiction cannot entertain proceedings

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

    Cited by respondents on exhaustion

  • Reuben Mwongela M'itelekwa (Suing as the Legal Representative of the Estate of M'Itelekwa Mucheke) vs Paul Kigea Nabea & 2 others
    (2019) eKLR

    Cited by respondents on exhaustion

  • Samuel Kamau & Another v Kenya Commercial Bank and 2 others
    (2012) eKLR

    Cited by respondents on jurisdiction

  • Agip (K) Ltd vs Highlands Tyres Ltd
    (2001) KLR 630

    Cited by applicant on inordinate delay

  • Sunchan Investments vs the Ministry of National Heritage and Culture
    (2016) eKLR

    Cited by applicant on judicial review of excess of powers

  • Council of Civil Service Unions vs Minister for the Civil Service
    (AC) 374

    Cited by applicant on grounds for judicial review

Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under Article 165(6) and (7) of the Constitution, as invoked by the applicant; Fair Administrative Actions Act also invoked

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, "Mutungi (The Administrator of the Estate of Mutungi Kimeu Makau - Deceased) v Adjudication Officer, Ndiani Adjudication Section & 7 others", Case Analysis (2022). Environment and Land Judicial Review Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14603/eng@2022-11-02

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