Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutConstitutional Petition E35 of 2021· [2023] KEELC 15723 (KLR)

Komora & 8 others (On their own behalf and on behalf of 9 Waata Families) v Cabinet Secretary Lands and Physical Planning & 13 others

Environment and Land Court at Malindi
20 February 2023
MOMao Odeny
3,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a community land petition because the families had to first finish the land adjudication process and file proper sworn evidence.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) disposed of the Petitioners' Notice of Motion dated 15th December 2021 seeking temporary injunctions restraining the Chairman of the Adu/Kamale adjudication section, the area Chief and other Respondents from chairing hearings, surveying, selling, disposing of or registering land in Chamari area, Magarini Sub-County, pending determination of a constitutional petition brought on behalf of the Waata community. The 1st, 2nd, 4th, 5th and 6th Respondents raised a Preliminary Objection contending lack of jurisdiction under Section 30 of the Land Adjudication Act, prematurity, want of a supporting affidavit, and defective unmarked annexures. The court upheld the objection. It held that the Land Adjudication Act prescribes elaborate dispute resolution and appeal mechanisms which must be exhausted, and that Section 30 requires an aggrieved person to obtain the Adjudication Officer's consent before moving to court while adjudication is ongoing; this applies even where a party alleges denial of fair hearing or trampling of rights by state officials. Exhaustion could not be excused as a technicality under Article 159(2)(d), per Raila Odinga v IEBC. On the affidavit issue, the court held that although the Mutunga Rules do not mandatorily require a supporting affidavit, a petition founded on evidential facts must be proved by affidavit or oral testimony; the unmarked, unsealed annexures were expunged, rendering the affidavit valueless. The Petition was struck out with each party bearing their own costs; the injunction application was not reached.

Key legal issues

#
01

Jurisdiction and exhaustion of remedies under Section 30 of the Land Adjudication Act

Holding

The court lacks jurisdiction to entertain the Petition before exhaustion of the Land Adjudication Act dispute resolution mechanisms and obtaining the Adjudication Officer's consent; the objection applies equally to constitutional petitions founded on land rights

Reasoning

The Land Adjudication Act provides elaborate procedures and appeal mechanisms for aggrieved persons during adjudication. Section 30 permits an aggrieved person to obtain consent to move to court while the register is open. The court held that even alleged denial of fair hearing in adjudication involves rights that must first follow the laid-down statutory procedures, and entertaining the petition would usurp those mechanisms.

p. 5
02

Want of a supporting affidavit and unmarked annexures

Holding

The Petition, being founded on factual matters, required a supporting affidavit; the unmarked, unsealed annexures were valueless and had to be expunged, leaving the Petition without evidence

Reasoning

Rule 10 of the Mutunga Rules makes a supporting affidavit optional, but where a petition relies on evidential facts these must be proved by affidavit or oral testimony. Annexures not marked or sealed under Rule 9 of the Oaths and Statutory Declarations Rules cannot be admitted; expunging them renders the affidavit incomplete and valueless, so the Petition must fail.

p. 7
03

Whether Article 159(2)(d) cures the procedural defects

Holding

Article 159(2)(d) does not excuse non-compliance with statutory procedural imperatives such as exhaustion of remedies

Reasoning

Relying on the Supreme Court in Raila Odinga v IEBC, the court held that the override clause was never intended to oust the obligation of litigants to comply with procedural requirements. Exhaustion of statutorily prescribed remedies is a substantive jurisdictional requirement, not a mere technicality salvageable under Article 159.

p. 5

Legal principles established

#
  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • Exhaustion of statutory remedies cannot be waived as a procedural technicality under Article 159
  • A petition relying on evidential facts must be proved by affidavit or oral testimony; only petitions challenging the constitutionality of a legislative text may proceed without a supporting affidavit

Court orders

#
  1. 1.Preliminary Objection dated 7th June 2022 upheld
  2. 2.Petition struck out
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Article 22 and 23 of the Constitution (petition for enforcement of fundamental rights) read with the Land Adjudication Act; jurisdiction contested under Section 30 of the Land Adjudication Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Komora & 8 others (On their own behalf and on behalf of 9 Waata Families) v Cabinet Secretary Lands and Physical Planning & 13 others", Case Analysis (2023). Constitutional Petition E35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15723/eng@2023-02-20

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