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ELCDismissedEnvironment & Land Case 263 of 2012· [2023] KEELC 15966 (KLR)

Kinyanjui & 97 others v Trustees (Settlements Fund Trustees)

Environment and Land Court
1 March 2023
JMJ.M. Mutungi
2,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court adopted an ADR report cancelling 98 settlers' plot claims, ordering refunds and priority for future allocations instead of titles.

What this practically means

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Executive summary

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In this ruling, the Environment and Land Court at Nakuru (Mutungi J) determined whether the report and recommendations of an ADR process chaired by the Nakuru County Commissioner should be adopted as a judgment of the court. The 98 plaintiffs had sued Settlements Fund Trustees claiming they were allocated plots in Oljorai Phase II Settlement Scheme between 2005 and 2008, but that in 2009/2010 the defendant unlawfully prepared a fresh allotment list and issued letters of allotment to third parties. They sought restraint orders and directions that they be issued allotment letters and titles. By consent, the dispute was referred to ADR under the County Commissioner, who filed a report finding that the plaintiffs' allotments had been properly nullified and cancelled following an October 2009 delegates' resolution and a subsequent ground verification exercise, and that the disputed plots were occupied and developed by others holding titles. The plaintiffs agreed with the report factually but not with its recommendations. The court held that ADR is anchored in Article 159(2)(c) of the Constitution, Section 20 of the Environment and Land Court Act and Order 46 of the Civil Procedure Rules, and that once parties elect ADR the court is divested of jurisdiction save for challenges on the same grounds as arbitration awards under Order 46 rules 15 and 16. Finding no misconduct or defect in the process, the court adopted the report, entered judgment in its terms, ordered refunds to plaintiffs who paid for cancelled offers, directed that affected plaintiffs be prioritized for future allocations, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the ADR Report and recommendations should be adopted as a judgment of the court

Holding

The court adopted the Report and entered judgment in terms of the Report and Recommendations, finding the ADR process complied with the order of reference and no misconduct by the umpire

Reasoning

The court reviewed the Report and annexures, found the composition of participants complied with the terms of reference, all interested parties including plaintiffs were represented, and the process followed the October 2009 resolutions on nullification and fresh verification. No grounds under Order 46 rules 15 and 16 for remitting or setting aside the award were established.

p. 5
02

Jurisdiction of the court after reference to ADR

Holding

Upon election of ADR, the court is divested of jurisdiction except to consider challenges to the conduct of the process on arbitration-like grounds

Reasoning

The court anchored ADR in Article 159(2)(c) of the Constitution, Section 20 of the Environment and Land Court Act and Order 46 of the Civil Procedure Rules, holding ADR is complementary to, not subordinate to, the court system, and challenges to the resulting award mirror the grounds for remitting or setting aside arbitration awards.

p. 4

Legal principles established

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  • Once parties elect ADR, the court is divested of jurisdiction over the matter save by way of an application challenging the conduct of the process
  • An ADR award may be challenged only on the same grounds an arbitration award may be challenged under Order 46 rules 15 and 16 of the Civil Procedure Rules

Court orders

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  1. 1.Plaintiffs holding cancelled letters of offer issued between 2005 and 2008 who paid any money for the plot offer and were issued official receipts to be refunded the money they paid upon production of the receipts by the Director of Land Adjudication and Settlement forthwith
  2. 2.Affected plaintiffs' names and particulars to be furnished to the Office of the Deputy County Commissioner, Gilgil to be prioritized for consideration for allocation of plots in any available Government Schemes established or declared by the Director, Land Adjudication and Settlement
  3. 3.The Director, Land Adjudication and Settlement to be furnished a copy of the ADR Report and the Ruling together with the plaintiffs' list to consider and give priority to the affected plaintiffs in case land is identified for settlement anywhere within Nakuru County or the Republic of Kenya
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Environment and Land Court Act, 2011Section 20
  • Civil Procedure RulesOrder 46 rule 20; Order 46 rules 15 and 16

Cases cited (5)

  • Kibwonges Arali Kogo Vs Mary Njeri Gitiga
    (2021) eKLR

    Once land is allocated, it cannot be re-allocated unless the first allocation was validly and lawfully cancelled

  • Ali Gadaffi & another vs Francis Muhia Muthungu & 2 others
    (2017) eKLR

    Where an allotment is made and terms met, the land is unavailable for re-allotment to another person

  • Mary Njeri vs Teket Ole Munitet & another
    (2018) eKLR

    Settlement Fund Trustees may validly cancel an allotment and re-allocate where due process is adhered to

  • Paul Ndirangu Kibugua & 149 others Vrs Ministry of Lands & 85 others
    (2021) eKLR

    Settlement Fund Trustees may validly cancel an allotment and re-allocate where due process is adhered to

  • Kamau Mbogo Vrs Settlement Fund Trustees
    (2019) eKLR

    Settlement Fund Trustees may validly cancel an allotment and re-allocate where due process is adhered to

Jurisdiction invoked
Article 159(2)(c) of the Constitution; Section 20 of the Environment and Land Court Act, 2011; Order 46 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyanjui & 97 others v Trustees (Settlements Fund Trustees)", Case Analysis (2023). Environment & Land Case 263 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15966/eng@2023-03-01

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