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ELCStruck OutEnvironment & Land Petition 004 of 2023· [2023] KEELC 16730 (KLR)

Awino & another v Mburu & 11 others

Environment and Land Court of Kenya
29 March 2023
6,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The two Petitioners, describing themselves as public-spirited citizens, filed a constitutional petition and a Notice of Motion dated 3rd February 2023 on behalf of Mungai Muoto Kuria, an elderly member and shareholder of the 7th Respondent, Githunguri Constituency Ranching Company Limited. They alleged mismanagement by the company's directors in the sub-division and alienation of L.R No. Ruiru/Kiu Block 2/Githunguri/2297 and sought a stay of transactions, a declaration of the true acreage, rectification of the register, joinder of parties and costs on a full indemnity basis. The 8th to 12th Respondents (State land officials) filed grounds of opposition and submissions contending the Petitioners lacked locus standi, that the dispute was private rather than constitutional, and that statutory remedies under the Land Registration Act, 2012 had not been exhausted. The 1st to 7th Respondents did not participate. The court framed two issues: locus standi and jurisdiction. On the first, it held that the liberalised standing under Articles 22 and 258 applies only to public rights and fundamental freedoms; the dispute concerned the private, in personam rights of a named shareholder, and the Petitioners exhibited no guardian ad litem order or power of attorney authorising them to act. On the second, it held that disputes over ascertainment and rectification of acreage of registered land fall within the mandate of the Chief Land Registrar under sections 14 and 79 of the Land Registration Act, 2012, and the exhaustion doctrine barred the petition as premature and misconceived. The entire Petition and the application were struck out with no orders as to costs.

Key legal issues

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01

Locus standi of the petitioners to sue on behalf of a shareholder

Holding

The Applicants lack locus standi; the dispute concerns private rights of Mungai Muoto Kuria and they produced no authority (guardian ad litem order or power of attorney) to act for him

Reasoning

The court held that relaxed standing under Articles 22 and 258 applies only to public rights and fundamental freedoms. The dispute here concerned the private, in personam rights of a named shareholder in the 7th Respondent company. Such issues can only be raised by the shareholder or a duly authorised agent. The Applicants exhibited no legal instrument evidencing authority to act for him and had no stake or interest in the dispute.

p. 9
02

Jurisdiction and the doctrine of exhaustion

Holding

The court lacked jurisdiction to entertain the dispute before exhaustion of the statutory mechanism under the Land Registration Act, 2012; the petition was premature and misconceived

Reasoning

The complaint related to authentication and rectification of the acreage of registered land, matters within the mandate of the Chief Land Registrar under sections 14 and 79(1)(c) of the Land Registration Act, 2012. Relying on the exhaustion doctrine as expounded by the Supreme Court and Court of Appeal, the court held the petitioners should first have approached the Registrar, rendering the petition premature and misconceived.

p. 14

Legal principles established

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  • The liberalised locus standi under Articles 22 and 258 applies only to constitutional disputes concerning enforcement of public rights or fundamental freedoms, not private disputes
  • Where a statutory dispute resolution mechanism exists, it must be exhausted before invoking the court's jurisdiction
  • Disputes over ascertainment or rectification of acreage of registered land fall within the mandate of the Chief Land Registrar under sections 14 and 79 of the Land Registration Act, 2012

Court orders

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  1. 1.The entire Petition is struck out
  2. 2.The Application dated the 3rd February 2023 is struck out
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 258, 159, 48
  • Land Registration Act, 2012Sections 14, 79(1)(c)
  • Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013Long title (Mutunga Rules)

Cases cited (21)

  • Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR

    Transformation of locus standi under Articles 22 and 258; bona fide requirement for public-interest litigants

  • Imaran Ltd & 5 Others versus Central Bank of Kenya Ltd & 5 Others
    (2016) eKLR
  • Republic versus IEBC Ex-parte National Super Alliance & 6 Others
    (2017) eKLR
  • William Odhiambo Ramogi & 3 Others versus Attorney General & 4 Others; Muslims For Human Rights & 2 Others (Interested Party)
    (2020) eKLR
  • Owners of Motor Vessels Lilian S versus Caltex Oil (K) Ltd
    (1989) eKLR
  • Chrispinus Munyane Papa & Another versus National Environment Management Authority & Another
    (2018) eKLR
  • Kalpana H Rawal versus Judicial Service Commission & Another
    (2016) eKLR
  • Law Society of Kenya versus Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000

    Locus standi signifies a right to be heard; sufficiency of interest required

  • Alfred Njau and Others versus City Council of Nairobi
    (1982) KAR 229

    Meaning of locus standi as a right to appear or be heard in court

  • Geoffrey Muthinja Kabiro versus Samuel Muguna Henry
    (2015) eKLR

    Exhaustion of alternative dispute resolution mechanisms before invoking court jurisdiction

  • Bethwel Allan Omondi Okal versus Telkom Founders Ltd
    (2017) eKLR

    Statutory dispute resolution organs must be exhausted before constitutional petitions

  • Albert Chaurembo Mumba & 7 others versus Maurice Munyao & 148 others
    [2019] eKLR

    Exhaustion of administrative remedies; deference to statutory dispute resolution bodies

  • S.P. Gupta v President of India & Others
    AIR [1982] SC 149

    Broad rule of locus standi for public wrongs (quoted within Mumo Matemu)

  • Rex v Inland Revenue Commrs.
    [1981] 2 WLR 722

    Lord Diplock on locus standi of public-spirited taxpayers (quoted within S.P. Gupta)

  • Speaker of National Assembly vs Njenga Karume
    [2008] 1 KLR 425

    Exhaustion of statutory remedies before constitutional petitions (cited within quoted authorities)

  • Alphonse Mwangemi Munga & 10 Others v African Safari Club Ltd
    [2008] eKLR

    Exhaustion doctrine (cited within Supreme Court quotation)

  • Narok County Council v Trans Mara County Council
    [2000] 1 EA 161

    Exhaustion doctrine (cited within Supreme Court quotation)

  • Kones vs Republic & Another ex parte Kimani wa Nyoike & 4 Others
    (2008) 3 KLR (EP)

    Exhaustion doctrine (cited within Supreme Court quotation)

  • Francis Mutuku vs Wiper Democratic Movement - Kenya & Others
    [2015] eKLR

    Exhaustion doctrine (cited within Supreme Court quotation)

  • David Ochieng Babu v Lorna Achieng Ochieng & 2 others
    [2017] eKLR

    Exhaustion doctrine (cited within Supreme Court quotation)

  • International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others
    Petition No. 552 of 2012

    Exhaustion of statutory remedies (cited within quoted authorities)

Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010 (invoked by petitioners); Environment and Land Court jurisdiction considered against the Land Registration Act, 2012

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, "Awino & another v Mburu & 11 others", Case Analysis (2023). Environment & Land Petition 004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16730/eng@2023-03-29

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