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ELCDismissedEnvironment & Land Petition E003 of 2022· [2023] KEELC 16087 (KLR)

Musya & 3 others v Muviku & 4 others

Environment and Land Court of Kenya
28 February 2023
6,798 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kitui court refused to send a land dispute challenge to a larger bench, confirming that 'final' ministerial decisions can still be reviewed by the courts.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitui (L.G. Kimani, J) dealt with the Petitioners' request dated 1st November 2022 for certification under Article 165(4) of the Constitution that the Petition raises substantial questions of law, so that it be referred to the Chief Justice for empanelment of a bench of not less than three judges. The underlying Petition challenges Minister's Appeal decisions in Land Adjudication matters over eleven parcels in Kimangao and Mivukoni Adjudication Sections, Kyuso, seeks certiorari to quash the Deputy County Commissioner's decisions, declarations of ownership, injunctions, and a declaration that Section 29(1)(b) of the Land Adjudication Act is unconstitutional. The Petitioners argued the questions on the ouster/finality clause and access to courts were weighty, complex and novel. The 1st Respondent and State counsel countered that the issues were simple, regularly litigated, and within a single judge's competence. The court applied the Supreme Court's guidance in the Judges & Magistrates Vetting Board case on ouster clauses, concluding that Section 29's finality clause does not oust the court's jurisdiction, and adopted the Suchan Investment and Mutanga Tea authorities on merit review under the Fair Administrative Action Act and resort to statutory dispute mechanisms. Relying on Kinyanjui v AG and Oparanya v DPP, the court held the issues were not novel or complex and that novelty alone does not amount to a substantial question of law. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Petition merits certification under Article 165(4) of the Constitution

Holding

No. The issues concerning Section 29(1)(b) of the Land Adjudication Act and the Minister's final decision are neither novel nor complex and are regularly determined by single judges.

Reasoning

The court reviewed Supreme Court authority on ouster clauses and Court of Appeal authority on merit review under the Fair Administrative Action Act, and found the questions settled. Reliance was placed on Kinyanjui v AG and Oparanya v DPP that novelty or complexity alone does not elevate a matter to a substantial question of law; a single judge may competently determine constitutional questions.

p. 11
02

Whether the finality clause in Section 29 of the Land Adjudication Act ousts the court's jurisdiction

Holding

No. The clause does not oust the jurisdiction of the court, which retains supervisory jurisdiction over quasi-judicial administrative decisions.

Reasoning

Applying the Supreme Court's decision in Judges & Magistrates Vetting Board v Centre for Human Rights & Democracy, the court adopted the position that courts guard their jurisdiction and that ouster clauses are not construed to exclude judicial review, particularly for errors going to jurisdiction.

p. 12
03

Whether Section 29(1)(b) is unconstitutional as limiting access to courts

Holding

The question is not novel and this court sitting as a single judge can competently deal with it; the certification application was not the forum for its determination.

Reasoning

The court noted that Section 29 has been in operation since 1968 and has been the subject of numerous constitutional and judicial review cases, and that a single judge has jurisdiction under Article 165(3) to determine whether any law is inconsistent with the Constitution.

p. 13

Legal principles established

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  • A finality/ouster clause such as Section 29 of the Land Adjudication Act does not oust the supervisory jurisdiction of the High Court, since the ultimate power of interpretation rests with the courts.
  • Novelty alone does not qualify a matter as raising a substantial question of law under Article 165(4); each case must be considered on its merits by the certifying judge.

Court orders

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  1. 1.Declined to certify that the matter raises a substantial question of law warranting reference to the Chief Justice under Article 165(4) of the Constitution
  2. 2.Dismissed the Petitioners' application dated 1st November 2022
  3. 3.Ordered that costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 24, 25, 27, 40, 47, 48, 50, 159(2)(b), 159(2)(c), 162, 165(3), 165(4), 258, 259
  • Land Adjudication ActSections 20, 21, 26, 29(1)(b), 29(4)
  • Fair Administrative Action Act, No. 4 of 2015Sections 4, 7(2)(f), 7(2)(i), 7(2)(j), 7(2)(k), 7(2)(l), 11(1)(e), 11(1)(h)

Cases cited (21)

  • Timotheo Makenge v Manunga Ngochi
    (1979) eKLR

    Court will not interfere with Minister's decision absent established excess of jurisdiction

  • Robert Kulinga Nyamu v Musembi Mutunga & another
    (2022) eKLR

    Section 29 of the Land Adjudication Act is mandatory; parties cannot re-litigate determined disputes

  • Lepore ole Maito v Letwat Kortom & 2 others
    (2016) eKLR

    Claim determined through adjudication process cannot be re-litigated

  • Republic v Attorney General ex parte Dominic Muthi; Julius Wambua Kanyenze (Interested Party)
    (2022) eKLR

    Decision on Minister's appeal under Land Adjudication Act

  • Peter Nganga Muiruri v Credit Bank Limited & another
    Civil Appeal No. 203 of 2006; [2008] eKLR

    Certification is a judicial discretion; a single judge may deal with constitutional issues

  • Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another
    [2016] eKLR

    Holistic approach; novelty alone does not qualify a matter for certification under Article 165(4)

  • Mbuvi Gideon Mike Sonko v Director of Public Prosecution & 4 others
    [2021] eKLR

    Relied on by 1st Respondent to oppose certification

  • Community Advocacy Awareness Trust & others v the Attorney General and others
    Nairobi Petition No. 243 of 2011

    Meaning of 'substantial question of law' left to each judge's interpretation

  • Martin Nyaga and others v Speaker County Assembly of Embu and 4 others
    (2014) eKLR

    Principles applicable to certification under Article 165(4)

  • Harrison Kinyanjui v Hon Attorney General
    Nairobi Petition Number 74 of 2011; [2012] eKLR

    Test for substantial question of law; three-judge bench decision of equal force to a single judge's

  • Chepkorir Rehema (suing through father and next friend) & 130 others v Kenya National Examinations Council
    (2017) eKLR

    Holistic approach to certification

  • Council of County Governors v Lake Basin Development Authority & 6 others
    (2019) eKLR

    Issues on impugned acts not novel; constitutionality dealt with by single judges

  • Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others
    [2014] eKLR

    Ouster/finality clauses do not exclude judicial review; courts jealously guard jurisdiction

  • Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others
    [2016] eKLR

    Fair Administrative Action Act introduces merit review via proportionality, but no power to substitute decision

  • R v Medical Appeal Tribunal, ex p. Gilmore
    [1957] 1 QB 574

    Certiorari not excluded by 'shall be final' ouster language

  • Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another
    [2015] eKLR

    Where a statute prescribes a dispute resolution mechanism, parties must resort to it first

  • Mbogo & another v Shah
    (1968) EA 93

    Appellate court will not interfere with discretion exercised on wrong principles

  • R v Home Secretary; Ex parte Daly
    [2001] 2 AC 532

    Proportionality as an independent ground of judicial review

  • Associated Provincial Picture Houses Ltd v Wednesbury Corp.
    [1948] 1 KB 223

    Reasonableness as a ground of judicial review

  • Chunilal v Mehta v Century Spinning and Manufacturing Co.
    AIR 1962 SC 1314

    Test for whether a question of law is substantial

  • Wilfred Karuga Koinange v Republic
    Nairobi Misc. App. 1140 of 2007

    Substantial question of law

Jurisdiction invoked
Article 165(4) of the Constitution of Kenya, 2010 (certification of a substantial question of law for empanelment of an uneven bench of not less than three judges)

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, "Musya & 3 others v Muviku & 4 others", Case Analysis (2023). Environment & Land Petition E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16087/eng@2023-02-28

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