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ELCDismissedPetition dated December 7, 2011 (Meru ELC)· [2023] KEELC 541 (KLR)

Mbondo v Ministry of Lands and Settlement Scheme & 3 others (Constitutional Petition 174 of 2011) [2023] KEELC 541 (KLR)

Environment and Land Court
8 February 2023
CYC.K Yano
3,163 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's petition, ruling that disputes over land adjudication decisions must go through judicial review, not the Constitution.

What this practically means

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Executive summary

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The petitioner sought a declaration that land parcel number 1408 within Kiengu/Kanjoo Adjudication Section measuring 5.0 acres belongs to him, plus an order of mandamus compelling the adjudication authorities to reflect him as owner in the adjudication register. His claim arose from an appeal to the Minister under Section 29 of the Land Adjudication Act (Appeal No 223 of 2010), decided on March 9, 2011 in favour of the interested party, despite the petitioner having earlier succeeded on objections to the register. The respondents called the Land Adjudication and Settlement Officer, who confirmed the petitioner was in the records but would not challenge the minister's decision, which remains unimplemented. The interested party maintained the dispute had been exhausted through the statutory adjudication process and that the minister's decision was final and procedurally sound. The court framed two issues: whether the petition raised a constitutional issue and whether the petitioner was entitled to the orders sought. Relying on authority that a 'final' statutory decision does not oust supervisory jurisdiction, the court nonetheless found the petition was an appeal against the minister's decision disguised as a constitutional petition. No certiorari application was before the court; the dispute was a private law matter with a robust statutory remedy, and no constitutional violation was demonstrated. The petition was dismissed with costs on February 8, 2023.

Key legal issues

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01

Whether the petition raises a constitutional issue

Holding

No - the petition is essentially an appeal against the minister's final decision under Section 29 of the Land Adjudication Act, disguised as a constitutional petition; fairness of the minister's decision is not a constitutional issue

Reasoning

The court found the minister's decision was made pursuant to statutory mandate and after hearing all parties. A complaint about the fairness or reasonableness of that decision falls within private law and must be pursued by judicial review (certiorari) or an ordinary suit. No certiorari application was before the court, and the minister's decision had not been set aside, vacated or quashed.

p. 5
02

Whether the petitioner is entitled to the orders sought

Holding

No - the declaration and mandamus sought would substitute the minister's decision, which cannot be done in a constitutional petition absent quashing of that decision

Reasoning

The only avenue open to the petitioner was a judicial review application under the Law Reform Act and Order 53 of the Civil Procedure Rules, since supervisory jurisdiction over tribunals is not removed by a 'final' decision clause. The petitioner did not seek certiorari, so no relief could issue.

p. 5

Legal principles established

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  • Where a statute provides a final administrative remedy, a party aggrieved by the minister's decision under Section 29 of the Land Adjudication Act may only challenge it by judicial review, not by a constitutional petition dressed as an appeal on the merits
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Private law disputes should not be brought as constitutional petitions where a robust statutory or civil remedy exists

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the respondents/interested party

Authorities

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Legislation

  • Constitution of KenyaArticles 19, 20, 22, 23, 40, 159
  • Land Adjudication Act, Cap 284 Laws of KenyaSection 29; Section 26
  • Law Reform Actprovisions on judicial review
  • Civil Procedure RulesOrder 53

Cases cited (10)

  • Tili Nguutu Vs Cabinet Secretary for Lands, Housing and Urban Development & 2 others
    [2021] eKLR
  • Re Malres; application
    (1958) 153 at 155
  • Re Gilmore; application
    (1957) ALL ER 796
  • Land Adjudication and Settlement Officer Maara Sub County & 3 others, exparte applicant: Minyiri Ragwa, Njeru Kirika (interested party)
    null
  • Republic Vs Kenya National Examination Council exparte Gathenji and Others
    Civil Appeal No 266 of 1996
  • Commissioner of Lands Vs Kunste Hotel Ltd
    [1997] eKLR
  • Bernard Murage Vs Fine Serve Africa Ltd & 3 others
    [2015] eKLR
  • Municipal Council of Mombasa Vs Republic & Another
    [2002] eKLR
  • Uhuru Muigai Kenyatta Vs Nairobi Star Publications Limited
    [2013] eKLR
  • Re Application by Bahadur
    (1968) LR (Cost) 297
Jurisdiction invoked
Articles 19, 20, 22, 23, 40 and 159 of the Constitution of Kenya

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, "Mbondo v Ministry of Lands and Settlement Scheme & 3 others (Constitutional Petition 174 of 2011) [2023] KEELC 541 (KLR)", Case Analysis (2023). Petition dated December 7, 2011 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/541/eng@2023-02-08

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