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ELCStruck OutEnvironment & Land Petition E002 of 2021· [2023] KEELC 17974 (KLR)

Morijo-Loita Residents Associations & 558 others v Narok South Land Adjudication & Settlement Officer & 2 others

Environment and Land Court
6 June 2023
CMCG Mbogo
3,468 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a community land petition because the residents had not first used the dispute process set out in the Land Adjudication Act.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (CG Mbogo, J) determined a notice of motion dated 15th December 2021 filed by the 2nd respondent, the Chairperson of the Loita-Morijo Land Adjudication Committee, seeking to strike out the petitioners' constitutional petition and refer the dispute to an arbitration board under Section 7 of the Land Adjudication Act (Cap 284). The petition, dated 24th February 2021, sought declarations that the respondents' conduct of the Morijo-Loita adjudication process breached Articles 10, 11, 27, 28, 35, 40, 43, 47 and 69 of the Constitution, including lack of public participation in appointing the adjudication committee, and certiorari and mandamus orders quashing the committee's appointment and the adjudication process. The 2nd respondent argued the petition was premature because the petitioners had not exhausted the dispute resolution mechanisms in the Land Adjudication Act, relying on several exhaustion authorities. The petitioners countered that only a constitutional court could determine alleged breaches of rights, that the arbitration board was non-existent, and that they had written to the 1st respondent repeatedly without redress. The court framed a single issue: whether it should strike out the petition and refer the dispute to arbitration. Reviewing Sections 5, 26, 29 and 30 of the Act, and applying Owners of Motor Vessel 'Lilian S', the court held that where a statute provides a dispute resolution mechanism, aggrieved parties must exhaust it, and that the court therefore had no jurisdiction at that stage. The petition dated 24th February 2021 was struck out, with no orders as to costs to promote harmony and reconciliation.

Key legal issues

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01

Whether the court should strike out the petition and refer the dispute to arbitration under the Land Adjudication Act

Holding

Yes - the petition was struck out because the petitioners had not exhausted the statutory dispute resolution mechanisms

Reasoning

The Land Adjudication Act (Cap 284) provides an elaborate procedure for land adjudication and dispute resolution: objections under Section 26, appeals to the Minister under Section 29, and a bar on civil proceedings under Section 30. The court, citing Owners of Motor Vessel 'Lilian S', held it had no jurisdiction to entertain the petition before exhaustion of those mechanisms. The petition was struck out with no order as to costs.

p. 8

Legal principles established

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  • Where a statute expressly provides a dispute resolution mechanism, an aggrieved party must exhaust those avenues before approaching the court
  • A court without jurisdiction must down its tools at once

Court orders

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  1. 1.The petition dated 24th February 2021 is struck out
  2. 2.Petitioners to exhaust the procedure for resolution of disputes provided under the Land Adjudication Act
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 11, 20, 21, 22, 23, 27, 28, 35, 40, 43, 44, 47, 50, 56, 69
  • Land Adjudication Act (Cap. 284)Sections 5, 7, 26, 29(1), 30(1)
  • Civil Procedure ActSections 3A and 80
  • Civil Procedure RulesOrder 2 Rule 15; Order 45 Rules 1 & 2
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules 2013Rule 19

Cases cited (8)

  • David Ntiyani & 15 Others v Attorney General & Another; Charles Panin Parkisua & 15 Others (Interested Parties)
    [2019] eKLR

    Petition premature where statutory dispute resolution avenues under the Land Adjudication Act not exhausted

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR

    Breadth of arbitration/dispute resolution mechanisms covering issues raised

  • Mohamed Ahmed Khalid (Chairman) & 10 Others v Director of Land Adjudication & 2 Others
    [2013] eKLR

    Requirement to exhaust dispute resolution mechanisms in the Land Adjudication Act

  • Anne Warnuda & 3 others v Kenya Railways Corporation & another, Mombasa High Court Petition No. 18 of 2013
    [2015] eKLR

    Where a clear procedure for redress is prescribed by statute, it should strictly be followed

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

    Exhaustion of prescribed dispute resolution procedure

  • Royal Media Services Limited v Attorney General & 6 Others
    [2015] eKLR

    Court's jurisdiction over infringement of fundamental rights and freedoms

  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 Others
    [2017] eKLR

    A court should not grant orders in vain or incapable of being implemented

  • Owners of Motor Vessel 'Lilian S' v Caltex Oil Kenya Ltd
    [1989] 1 KLR 1

    Jurisdiction is everything; a court without jurisdiction must down its tools

Jurisdiction invoked
Articles 20, 21, 22 & 23 of the Constitution of Kenya (petition for enforcement of fundamental rights and freedoms)

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, "Morijo-Loita Residents Associations & 558 others v Narok South Land Adjudication & Settlement Officer & 2 others", Case Analysis (2023). Environment & Land Petition E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17974/eng@2023-06-06

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