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ELCDismissedEnvironment and Land Constitutional Petition 9 of 2022· [2023] KEELC 16426 (KLR)

Chelimo v Chebii & 3 others

Environment and Land Court
17 March 2023
LWL. N. Waithaka
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land dispute petition, ruling that challenges to the Minister's land adjudication decision must go through judicial review, not a constitutional petition.

What this practically means

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Executive summary

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The petitioner, David Kiptala Chelimo, filed a constitutional petition seeking an order of certiorari to quash the decision of the Cabinet Secretary made on 8th May 2019 in Appeal to the Minister Case No. 162 of 2009, concerning plot No. 78 Kapkoiwo Adjudication Section. He complained that the Minister failed to consider his evidence, that the 1st respondent's acquisition of the land was unproved, that the decision was unfair and irrational, and that the appeal to the Minister was filed out of the sixty-day period prescribed by Section 29(1) of the Land Adjudication Act and was therefore a nullity. The respondents opposed, contending that the petition circumvented the LAA procedures, failed the Anarita Karimi Njeru and Mumo Matemu pleading threshold, and was an abuse of process since the Minister's decision is final. The 1st respondent also defended his replying affidavit against a challenge based on Section 5 of the Oaths and Statutory Declarations Act. Disposing of the matter on written submissions, the court framed the jurisdictional question as decisive. Relying on Timotheo Makenge v Manunga Ngochi, Robert Kulinga Nyamu and Lepore Ole Maito, it held that the LAA prescribes a complete code with the Minister's decision final, and that any challenge to that decision lies only in judicial review, not a constitutional petition. The time-bar complaint raised no constitutional issue. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction to entertain a constitutional petition challenging a final Minister's decision under the Land Adjudication Act

Holding

The court lacks jurisdiction; the petition offends Section 29 of the LAA which makes the Minister's decision final, and the proper remedy was judicial review

Reasoning

The court relied on Timotheo Makenge v Manunga Ngochi, holding the LAA prescribes a complete code with the Minister's orders being final, and on Robert Kulinga Nyamu and Lepore Ole Maito, holding that challenges to the Minister's determination lie only in judicial review. The petition, though dressed as a constitutional claim, was in substance an appeal against the Minister's decision.

p. 6
02

Whether the time-bar complaint against the appeal to the Minister raises a constitutional issue

Holding

No; time bar is a statutory issue to be determined within the applicable statute, not a constitutional question

Reasoning

The court held there was nothing constitutional in a claim said to be time barred, since the Constitution does not prescribe timelines for appeals to the Minister. The complaint of late filing fell to be determined under the LAA, and the petition was an attempt to escape the statutory dispute-resolution structures.

p. 5

Legal principles established

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  • Where the Land Adjudication Act prescribes a complete code for adjudication disputes and makes the Minister's appeal decision final, a party aggrieved by that decision may only challenge it by way of judicial review, not a constitutional petition
  • Packaging a challenge to a Minister's adjudication decision as a constitutional petition does not confer jurisdiction on the court

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Land Adjudication ActSection 29(1); Section 26
  • Oaths and Statutory Declarations ActSection 5
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Articles 22, 23, 27, 40, 47, 60, 159(2)(d)

Cases cited (16)

  • Anarita Karimi Njeru v. Republic
    (1979) 1 KLR 54

    Test for pleading constitutional rights violations with precision

  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    Civil Appeal No.290 of 2012 (2013) eKLR

    Constitutional pleading threshold

  • Mary Gathoni & another v Fridah Ariri Otolo & Another
    (2020) eKLR

    Striking out affidavits not sworn in compliance with Section 5 of the Oaths and Statutory Declarations Act

  • Regina Munyiva Ndunge v Kenya Commercial Bank
    (2005) eKLR

    Affidavits not complying with Section 5 of Oaths and Statutory Declarations Act

  • Macfoy v United Africa Co. Ltd
    (1961) All E.R 1169

    A void act is a nullity in law

  • Samuel Ngigi Wahogo & 4 others v. Attorney General & 2 Others, Samuel Chege (Interested Party)
    (2019) eKLR

    Relief under Articles 22 and 23 of the Constitution

  • Benard Muage v. Fine Serve Africa Ltd & 3 others
    (2015) eKLR

    Petition as back-door challenge

  • Kenya Bus Services Ltd v. Attorney General
    (2005) 1 KLR 287

    Petition as back-door challenge

  • Tobias Ochola Osidi & 13 Others v Cyprian Otieno Ogalo & 6 others
    (2013) eKLR

    Petition as back-door challenge

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

    Minister's determination under Section 29 final; challenge only by judicial review

  • John Masiantet Saeni v. Daniel Aramat Lolungiro & 3 Others
    (2017) eKLR

    Petition as back-door challenge

  • Saggu v. Roadmaster Cycle Ltd
    (2002) 1 EA 258

    Defects in affidavits curable under Article 159(2)(d)

  • National Assembly v Karume Njenga
    (1992) eKLR

    Where a statute provides a specific remedy, it must be followed

  • Mwangi Njagu v Meshack Mbogo Wambugu & Another
    HCC No. 234 of 1991 (unreported)

    Petition misconceived as attempt to reverse validly done adjudication process

  • Timotheo Makenge v. Manunga Ngochi
    (1978) KLR 53

    LAA prescribes a complete code; Minister's orders final

  • Robert Kulinga Nyamu v Mutunga & Another
    (2022) eKLR

    Court may interfere with adjudication decisions only by judicial review or on a new cause of action

Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya, 2010 (petition invoked); court found jurisdiction ousted by Section 29 of the Land Adjudication Act, Cap 284

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, "Chelimo v Chebii & 3 others", Case Analysis (2023). Environment and Land Constitutional Petition 9 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16426/eng@2023-03-17

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