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ELCDismissedEnvironment and Land Constitutional Petition 5 of 2022· [2022] KEELC 15231 (KLR)

Suter v The District Land Adjudication & Settlement Officer & 4 others

Environment and Land Court
6 December 2022
LWL. N. Waithaka
3,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A landowner lost his constitutional challenge because he skipped the Land Adjudication Act's internal objection and appeal steps and never pleaded his strongest argument.

What this practically means

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Executive summary

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The petitioner challenged the adjudication of land parcel No. 1853 in Chesoi Adjudication Section, Elgeyo Marakwet, under which a portion was allocated to the 5th respondent following decisions in the 5th respondent's favour by the Land Committee and the Arbitration Board under the Land Adjudication Act (LAA). He sought declarations of violation of Articles 10, 35, 40, 47, 50 and 63, certiorari to quash the demarcation and allocation decisions, prohibition against implementation, and mandamus compelling reconstitution of the Land Adjudication Committee. The respondents denied bias and procedural irregularities; the 5th respondent asserted he had purchased the portion in 1992 and that his rights were ascertained through the statutory process. The court framed a single issue: whether the petitioner had made out a case for the orders sought. It held that although styled as judicial review, the suit was in substance a challenge to the award of the land, and that the petitioner had not exhausted LAA remedies, having neither objected to the Land Adjudication Officer nor appealed to the Minister. The court found the only arguable point - improper constitution of the Arbitration Board with three instead of five members - had not been pleaded but raised only in submissions, which are neither pleadings nor evidence, so the petitioner was estopped from relying on it. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Whether the petitioner proved violations of his constitutional rights in the adjudication process

Holding

No; the petition was dismissed for lack of merit, non-exhaustion of statutory remedies and failure to plead the key allegation

Reasoning

The court found the suit, though fashioned as judicial review, was a challenge to the award of the land to the 5th respondent. The petitioner had not objected to the Land Adjudication Officer or appealed to the Minister. The allegation of improper constitution of the Arbitration Board was raised only in submissions, not pleadings, and submissions are not evidence or pleadings.

p. 6

Legal principles established

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  • Submissions are neither pleadings nor evidence and cannot take the place of proof of a claim
  • A party is estopped from relying on an allegation not specifically pleaded

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 22, 23, 35, 40, 47, 48, 50, 60, 63, 253, 258
  • Land Adjudication Act, Cap 284section 6(1)
  • Fair Administrative Action Act
  • Evidence Act, Cap 80section 107
  • Law of Contract Actsection 3(3)

Cases cited (6)

  • M'ibari Gatuguti v. Land Adjudication Officer Imenti South/North Districts & 2 others
    (2018) e KLR

    Mandatory requirement that the adjudication officer appoints not less than five persons to form an Arbitration Board

  • Nation Media Group Ltd v Attorney General
    (2007) 1 E.A 261

    A constitutional court should be liberal, looking at substance rather than technicality

  • Simon Natal Ntoitha v. Sub-County Land Adjudication and Settlement Officer, Igembe North & 2 Others
    (2022) e KLR

    Support for entitlement to reliefs sought

  • Okongo Jin Tobias Osidi & another v. Cyprianus Otieno Ogalo & another; 6 others
    (2013) e KLR

    Court lacks mandate in judicial review to reconsider evidence adduced

  • Ngang'a & Another v Owiti & Another
    [2008] 1 KLR (EP) 749

    Final submissions are not evidence; decisions rest on claim, evidence and law

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR

    Submissions cannot take the place of evidence

Jurisdiction invoked
Articles 10, 22, 23, 40, 47, 48, 50, 60, 63, 253 and 258 of the Constitution of Kenya 2010

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, "Suter v The District Land Adjudication & Settlement Officer & 4 others", Case Analysis (2022). Environment and Land Constitutional Petition 5 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15231/eng@2022-12-06

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