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ELCDismissedPetition dated 26th November 2021 (Application dated 14th April 2022)· [2023] KEELC 350 (KLR)

Kitheka (Suing as administrator of the Estate of Kitheka Mweta) v Mwova & 8 others (Constitutional Petition E001 of 2021) [2023] KEELC 350 (KLR)

Environment and Land Court
26 January 2023
3,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that even after a final Minister's land appeal decision, you can still sue over rights violations committed during the process.

What this practically means

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Executive summary

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The 1st Respondent filed a Notice of Motion dated 14th April 2022 seeking to strike out the Petitioner's constitutional petition concerning land parcels KYUSO/KYUSO"A"/179 and resultant plots, on grounds that it was scandalous, vexatious, an abuse of process and res judicata. The dispute between the parties' fathers dates back to 1977 and passed through Migwani DMCC No. 31 of 1978, Mwingi RMCC No. 68 of 1994, committee and arbitration board proceedings, and Minister's Appeal No. 395 of 2011 under the Land Adjudication Act, in which the Minister's decision is final under Section 29. The Petitioner alleged violations of his rights to fair hearing (Article 50(1)) and fair administrative action (Article 47(1)) during the adjudication process. The court held that although the Minister's decision is final, the ELC, being of equal status to the High Court, has original jurisdiction under Articles 22 and 23 to hear claims of rights violations in land matters within its jurisdiction, and supervisory jurisdiction under Article 165(6) and (7) over the quasi-judicial adjudication bodies. The court found the petition neither manifestly groundless nor scandalous, not a re-litigation of the ownership issues decided in the adjudication process, not res judicata, and not in breach of the exhaustion doctrine. Relying on D.T. Dobie, the court held striking out is a drastic remedy reserved for complete shams. The application dated 14th April 2022 was dismissed with costs to the Petitioner.

Key legal issues

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01

Whether the ELC can entertain a constitutional petition alleging violation of fair hearing and fair administrative action rights in a concluded land adjudication process

Holding

Yes; the court has original jurisdiction under Article 22 over fundamental rights violations in the adjudication process and supervisory jurisdiction under Article 165(6) and (7) over the adjudication tribunals, notwithstanding the finality of the Minister's decision under Section 29 of the Land Adjudication Act.

Reasoning

The court accepted that Section 29 of the Land Adjudication Act makes the Minister's order final, but held that this does not oust the court's jurisdiction over constitutional rights claims. The ELC, being of equal status to the High Court, may under Section 13 of the ELC Act hear rights violations in land matters, and under Article 165(6) and (7) exercises supervisory jurisdiction over quasi-judicial bodies such as the adjudication committees and arbitration boards. Whether the rights were actually violated is a matter for trial.

p. 7
02

Whether the petition is frivolous, vexatious, scandalous or an abuse of process warranting striking out

Holding

No; the petition is not manifestly groundless, discloses a cause of action, and is neither grossly disgraceful nor a re-litigation of matters already litigated.

Reasoning

Applying Halsbury's Laws of England and D.T. Dobie, the court held that striking out requires a pleading that is plainly unarguable or a complete sham. The petition raises triable questions on whether the Petitioner's Article 50(1) and Article 47(1) rights were violated during adjudication, which can only be determined upon hearing the petition to conclusion, not on a striking-out application.

p. 7
03

Whether the petition is res judicata or offends the exhaustion doctrine

Holding

No; the issues in the constitutional petition (alleged rights violations) are different from those determined in the adjudication process (ownership of the parcels).

Reasoning

The court distinguished between the merits of ownership determined by the adjudication organs and the constitutional question of whether the process violated the Petitioner's rights. The Petitioner is not appealing the Minister's decision but challenging the process. Res judicata and exhaustion cannot bar a fresh constitutional claim over rights violations that were never the subject of the adjudication proceedings.

p. 7

Legal principles established

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  • After a final decision in an appeal to the Minister under the Land Adjudication Act, the Environment and Land Court retains original jurisdiction to hear claims of infringement of fundamental rights and freedoms during the adjudication process, and supervisory jurisdiction over the quasi-judicial tribunals established under that Act.
  • The Environment and Land Court's jurisdiction extends to hearing and determining matters relating to denial, violation or infringement of rights in the Bill of Rights in land matters falling within its jurisdiction.
  • Striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham, and no suit ought to be summarily discharged unless it plainly and obviously discloses no reasonable cause of action.

Court orders

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  1. 1.The application dated 14th April 2022 is dismissed
  2. 2.Costs of the application awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 165(6) and (7)
  • Constitution of Kenya, 2010Article 22(1) and (2)
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 24
  • Land Adjudication Act (Cap 284)Section 29 (including Section 29(1)(b))
  • Land Adjudication Act (Cap 284)Section 26
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 7

Cases cited (19)

  • Geofrey Muthinja Kabiru & 2 Others vs Samuel Munga Henray & 1756 Others
    (2015) eKLR
  • Mbebe & 105 others vs Attorney General & 7 others
    (2021) eKLR
  • National Land Commission vs Registered Trustee of the Arya Partiniadhi Sabha, Eastern Africa & Another
    (2019) eKLR
  • National Gender & Equality Commission & another v. Judicial Service Commission & 2 others
    (2017) eKLR
  • Matwanga Kilonzo vs District Commissioner, Kitui & Another
    (2021) eKLR
  • Owners of Motor Vessel Lilian 'S' Caltex Oil (K) Ltd
    [1989] eKLR
  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No.25 of 2022 (2009)
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Muhamed Abdi Mohamud vs Ahmed Abdulahi Mohamad & 3 others
    Petition No. 7 of 2018
  • John Florence Maritime Services Ltd and Another vs Cabinet Secretary for Transport and Infrastructure & 3 others
    (2021) eKLR
  • Tobias Achola Osidi & 13 Others vs. Cyprianus Otieno Ogalo & 6 others
    (2013) eKLR
  • Dawkins v Prince Edward of Saxe Weimar
    (1876) 1 QBD 499
  • Yat Tung Investment Co Ltd v Dao Heng Bank Ltd
    [1975] AC 581, PC
  • Castanho v Brown and Root (UK) Ltd
    [1981] AC 557, [1981] 1 All ER 143, HL
  • Hunter versus Chief Constable of West Midlands Police
    (1982) AC 529
  • Farjas (Pty) Limited & Another versus Regional Land Claims Commissioner, Kwazulu Natal
    (LCC21/96) (1998) ZALCC 1
  • West Kenya Sugar Co. Limited – v – Busia Sugar Industries Limited & 2 others
    [2017] eKLR
  • Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
Jurisdiction invoked
Articles 22, 23 and 165(6) and (7) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act

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, "Kitheka (Suing as administrator of the Estate of Kitheka Mweta) v Mwova & 8 others (Constitutional Petition E001 of 2021) [2023] KEELC 350 (KLR)", Case Analysis (2023). Petition dated 26th November 2021 (Application dated 14th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/350/eng@2023-01-26

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