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ELCDismissedPetition dated February 17, 2021 (number not stated in judgment)· [2023] KEELC 386 (KLR)

Simon Kaugatu M'Ithibwa v Atanasio Kabotole Kibaara & others

Environment and Land Court
25 January 2023
3,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a landowner's constitutional petition because he skipped the dispute mechanisms the Land Consolidation Act already provides.

What this practically means

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Executive summary

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The petitioner, recorded owner of Parcel No 6387 Karama Adjudication Section in Tigania, Meru County, petitioned against the hearing and determination of objection No 860 by the Land Adjudication and Settlement Officer (5th respondent), alleging fraud, collusion and bias in the hiving off of 0.10 acres of his land in favour of the 1st respondent. He further complained of his arrest, charge and prosecution in Tigania SPM Criminal Case No 450 of 2020 for interfering with demarcated boundaries, and of destruction of his crops by the 1st and 2nd respondents. He sought registration as owner of 1.40 acres, declarations of unconstitutional arrest and prosecution, compensation and damages anchored on articles 27, 40, 47 and 50 of the Constitution. The 5th and 7th respondents opposed, asserting the objection was lawfully heard and determined under the Land Consolidation Act (Cap 283), that the petition raised no constitutional question, and that statutory remedies and the doctrines of avoidance and exhaustion barred the suit. Only the petitioner testified; the respondents did not attend the hearing. The court framed four issues and held that the petition, though pleaded with some precision and filed in the right forum, fell short of raising constitutional questions. The claims concerning prosecution belonged to statute, no nexus between the objection and prosecution was shown, and no complaint under article 47 was ever made. The objection proceedings were governed by Cap 283, whose constitutionality was not impugned, and the petitioner failed to exhaust statutory remedies and could not explain a delay of close to five years. Allegations of fraud, bias and unfair hearing were unsubstantiated. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the petition raised a constitutional question

Holding

It did not; the claims fell under statute (land adjudication and criminal process) and no constitutional infringement was demonstrated

Reasoning

The court held that not every alleged violation of law attracts a constitutional petition. The dispute centred on objection proceedings under the Land Consolidation Act, whose constitutionality and procedures were not impugned. The criminal prosecution claim lacked any evidence of complaints to the police or ODPP, and no nexus between the objection and prosecution was shown. Applying constitutional avoidance, ordinary statutory remedies were the proper avenue.

p. 6
02

Exhaustion of internal dispute mechanisms under Cap 283

Holding

Petitioner did not exhaust statutory remedies under sections 17, 18, 19 and 26 of the Land Consolidation Act and gave no explanation for the delay

Reasoning

The Land Consolidation Act provides mechanisms for aggrieved parties in ascertainment of interests in land. The petitioner did not deny the Act governed the objection nor challenge the replying affidavit and proceedings. Article 159(2) obliges courts to promote alternative dispute mechanisms. No exceptional circumstances under section 9(4) of the Fair Administrative Action Act were shown to exempt him.

p. 6
03

Whether the 5th respondent's handling of objection No 860 violated fair administrative action rights

Holding

No violation established; the objection was heard with both parties availing witnesses and each party given a fair hearing

Reasoning

Under Article 47 and the Fair Administrative Action Act, administrative action must be expeditious, efficient, lawful, reasonable and procedurally fair with written reasons. The evidence showed the objection was heard and determined, a ground visit conducted, and a finding made adopting the access road as boundary. Allegations of fraud, bias and collusion were not substantiated to the required standard.

p. 6
04

Burden of proof on alleged constitutional violations

Holding

Petitioner failed to discharge the burden under sections 107-111 of the Evidence Act, producing no document complaining to the respondents or seeking article 47 remedial action

Reasoning

The burden lies on he who alleges violation. The petitioner produced no written complaint to the 5th, 6th and 7th respondents regarding infringement of rights or seeking remedial action under article 47. Nothing tendered showed a nexus between the objection proceedings and the alleged arrest, charge and prosecution, and pendency of criminal charges is no bar in law.

p. 5

Legal principles established

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  • Decisions of the land adjudication officer and committee in objection proceedings are final and not appealable to court; the court cannot usurp the jurisdiction of institutions created under the Land Consolidation Act
  • Supervisory powers of the court over adjudication statutes do not extend to ascertainment and determination of interests in land within an adjudication area, though the court retains residual power to determine points of law arising from the process
  • A party invoking constitutional jurisdiction must plead violations with precision and specificity and support them with tangible evidence

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Consolidation ActCap 283; sections 11(2), 13, 14, 17, 18, 19, 20, 26(1), 26(3), 26(a)
  • Fair Administrative Action Actsection 9(4)
  • Evidence Actsections 107-111
  • National Police Service Act
  • Constitution of Kenyaarticles 20, 21, 22, 23, 27, 40, 47, 50, 157, 159(2), 165(3)(b), 243, 245, 252(2), 258, 259, 260
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)LN 117 of 2013

Cases cited (12)

  • Gabriel Mutava & 2 others v MD KPA & another
    (2016) eKLR
  • Mugure v Fine Serve Africa Ltd & 3 others
    (2013) eKLR
  • Speakers of National Assembly v James Njenga Karume
    (1992) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance
    (2014) eKLR
  • Lt Col Peter Ngari Kagume & 7 others v AG
    (2009) eKLR
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • Christian Wabwire v AG
    (2018) eKLR
  • Lewis Wilkinson Waiyaki v Hon Attorney General
    (2016) eKLR
  • Abraham Kanzika t/a Kapco Machinery Services & Milano Investments Limited v Governor CBK & 2 others
    Misc Civil Appeal 1759 of 2004
  • Mutanga Tea & Coffee Company v Shikara Limited & another
    (2016) eKLR
  • Peter Kimandiu vs Land Adjudication Officer Tigania West District & 4 others
    (2016) eKLR
  • Tobias Osindi & 13 others v Cyprian v Ogalo & 20 others
    (2013) eKLR
Jurisdiction invoked
Articles 20, 21, 22, 23, 165(3)(b), 159, 252(2), 258, 259 and 260 of the Constitution

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, "Simon Kaugatu M'Ithibwa v Atanasio Kabotole Kibaara & others", Case Analysis (2023). Petition dated February 17, 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/386/eng@2023-01-25

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