Kimetto v County Government of Baringo (Environment and Land Constitutional Petition 15 of 2022) [2023] KEELC 822 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a challenge to a Minister's land adjudication decision, confirming that judicial review—not a constitutional petition—is the correct route.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to hear a petition against the Minister's decision under the Land Adjudication Act
The petition, filed as a constitutional petition rather than judicial review, is misconceived; the court's role over the adjudication process is supervisory only
The Land Adjudication Act provides an elaborate dispute resolution mechanism culminating in the appeal to the Minister under section 29, whose decision is final. Following Robert Kulinga Nyamu and John Masiantet Saeni, a party aggrieved must move the court by judicial review to challenge legality of the process, and the Constitution cannot be used to resurrect matters resolved through due process. The petition is tantamount to a second bite of the cherry.
Whether fair administrative action and hearing rights under article 47 were violated
No violation: the appellant was heard in the Minister's appeal, cross-examined the respondent's witness, and the Minister considered the cases presented before arriving at the decision
The proceedings before the Minister (J.K.K.4) show the appellant appeared with a witness, cross-examined the respondent's representative, and the Minister made express findings: no one forced them off the land, witnesses admitted those who donated land for public utilities were not entitled to compensation, and the beneficiaries had developed the parcels. The Minister discharged his mandate under section 29 of the LAA.
Whether the matter should be remitted to the NLC as a historical land injustice
Refused; the petitioner must institute any such claim before the NLC himself
Article 67(2)(e) empowers the NLC to investigate historical land injustices, but the court saw no basis for ordering referral since the petitioner can approach the Commission directly and had not explained why he did not.
Legal principles established
#- Under section 29(4) of the Land Adjudication Act the decision of the Minister is final
- A party aggrieved by the Minister's decision under the Land Adjudication Act must pursue judicial review of the legality of the decision or process, not a constitutional petition
- A court cannot remit a party to the National Land Commission; the party must institute the claim there itself
Court orders
#- 1.The Petition is dismissed
- 2.No order as to costs, the petition being undefended
- On appeal from
- Land Adjudication appeal to the Minister (via Deputy County Commissioner Baringo Central) under Section 29 of the Land Adjudication Act
- Appeal to the Minister Case No. 263 of 2009
- Jurisdiction invoked
- Articles 22(3), 23(1), (3)(a) & (f), 40, 43 and 47 of the Constitution; Section 9 of the Fair Administrative Actions Act, 2015 and Section 13(1)(6) & (7) of the Environment and Land Court Act (as urged by the petitioner)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimetto v County Government of Baringo (Environment and Land Constitutional Petition 15 of 2022) [2023] KEELC 822 (KLR)", Case Analysis (2023). Petition (Economy) — Salawa Adjudication Section; Appeal to the Minister Case No. 263 of 2009 (number of the instant petition not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/822/eng@2023-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.