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ELCDismissedMalindi Petition No 13 of 2021· [2023] KEELC 278 (KLR)

Mtana v Munga & 8 others (Environment & Land Petition 13 of 2021) [2023] KEELC 278 (KLR)

Environment and Land Court
25 January 2023
MOM.A. Odeny
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kilifi landowner lost his case because he skipped the required 28-day appeal to the National Land Commission and went straight to court instead.

What this practically means

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Executive summary

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The petitioner, Johnson Robert Mtana, sought declarations that he was the rightful registered owner of parcel Chembe/Kibabamshe/152 measuring approximately 34.5 Ha in Kilifi, that his rights under Articles 40 and 47 of the Constitution were violated by the respondents, and orders cancelling titles issued to the 1st to 6th respondents, a permanent injunction, exemplary and punitive damages, eviction, and police supervision of implementation. His title, registered in 1990, was the subject of an inquiry by the National Land Commission into historical land injustices, which in 2017 determined via Gazette Notice No. 6862 that the land be repossessed and reallocated to the community and the Mwamunda family, clarifying the petitioner owned parcel 18. The 8th respondent implemented the decision in 2020, issuing titles to the 1st to 6th respondents. The respondents argued that the NLC acted within its statutory mandate under sections 5(1) and 15(9)(g) of the National Land Commission Act and that the title could be revoked under section 26(1)(b) of the Land Registration Act. The court framed three issues: jurisdiction, the NLC's mandate, and whether the orders sought were merited. Relying on Rule 29 of the NLC (Historical Land Injustices) Rules, 2016, which prescribes an appeal within 28 days, and on Almer Farm Limited v National Land Commission and the Karume principle that prescribed procedures must be strictly followed, the court held that the petitioner, having participated in the NLC proceedings and failed to appeal, could not invoke the court's jurisdiction through a petition. The petition was dismissed with costs.

Key legal issues

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Jurisdiction of the ELC to entertain a petition challenging an NLC historical injustices determination

Holding

The court lacked jurisdiction because the petitioner did not appeal against the gazetted NLC decision within 28 days as required by Rule 29 of the NLC (Historical Land Injustices) Rules, 2016.

Reasoning

The petitioner participated in the NLC proceedings, a decision was reached and gazetted. The rules prescribe an appeal within 28 days as the mode of redress. Where the law provides a specific procedure for redress of a grievance, that procedure must be strictly followed before resorting to the court. The petitioner instead filed a constitutional petition, which was an invitation for the court to assume jurisdiction it does not have.

p. 6

Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before resorting to a court of law.
  • A party aggrieved by a decision of the National Land Commission on historical land injustices must appeal within 28 days under Rule 29 of the NLC (Historical Land Injustices) Rules, 2016; failure to do so deprives the court of jurisdiction over a petition.

Court orders

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  1. 1.The petition is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), 40(2)(a), 40(3)(b)(1), 47(1), 47(2)
  • National Land Commission ActSection 5(1), Section 15(9)(g)
  • Land Registration ActSection 26(1)(b)
  • National Land Commission (Historical Land Injustices) Rules, 2016Rule 29
  • Land Act
  • Civil Procedure RulesOrder 21 [1]

Cases cited (4)

  • Registered Trustee of Arya Pratinidhi Sabha, Eastern Africa v National Land Commission & another
    [2016] eKLR
  • Almer Farm Limited v National Land Commission & 2 others
    [2021] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Republic v National Land Commission; Katana Karisa Saro & another (Interested Parties) Ex Parte; John Kamande Mwaniki
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) — the court found it lacked jurisdiction over the petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mtana v Munga & 8 others (Environment & Land Petition 13 of 2021) [2023] KEELC 278 (KLR)", Case Analysis (2023). Malindi Petition No 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/278/eng@2023-01-25

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