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ELCDismissedEnvironment & Land Petition 8 of 2018· [2023] KEELC 18900 (KLR)

Luka v Chairman, Land Adjudication Committee, Leshuta Adjudication Section & 3 others; Olopirikany & 7 others (Interested Parties)

Environment and Land Court
25 July 2023
CMC.G. Mbogo
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a petition challenging land adjudication because the petitioner couldn't identify who he was representing and skipped required appeal steps.

What this practically means

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Executive summary

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Jimmy P. Luka petitioned the Environment and Land Court at Narok alleging that the Leshuta Land Adjudication Committee unconstitutionally excluded female community members, persons with disabilities, orphans and widows from the adjudication register, in breach of Articles 27, 40, 43 and 47 of the Constitution and of consent orders recorded in prior constitutional petitions. He sought conservatory orders, scrutiny of the adjudication record and effective remedies, later adding claims for general damages in submissions. The respondents denied non-compliance, deposing that an implementation committee had allocated plots to qualified members including widows, persons with disabilities and orphans, and objected that the petitioner lacked locus standi and had bypassed the dispute-resolution machinery of the Land Adjudication Act. The interested parties contended the petition was brought in bad faith, that no excluded persons were identified, and that the petitioner's 2018 consent had been set aside by Kullow, J in December 2019. Mbogo, J framed three issues: locus standi, entitlement to the orders sought, and costs. The court held that although the petitioner could sue for his daughters, the widows, orphans and persons with disabilities he purported to represent were not an ascertainable class, no list having been supplied. It further held that the petitioner failed to prove non-compliance with the consent orders, his averments being speculative, and that he ought first to have exhausted remedies under the Land Adjudication Act, including appeal to the Minister under Section 29, before resorting to judicial review. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Locus standi to bring a representative constitutional petition

Holding

Petition dismissed for lack of standing: the petitioner could act for his daughters (whose existence was proved by birth certificates) but the widows, orphans and persons with disabilities he purported to represent were not an ascertainable class, no list having been provided

Reasoning

Article 22 permits litigation on behalf of others, in the interest of a group or class, or in the public interest. The verifying affidavit showed the petition was on behalf of the petitioner's daughters and unnamed categories of persons. Without a list or identification of the widows, orphans and persons with disabilities, the court could not ascertain the class allegedly affected by the adjudication process, so representative standing failed.

p. 6
02

Entitlement to the orders sought / alleged non-compliance with consent orders

Holding

Petitioner failed to prove non-compliance with the consent in Narok ELC Constitutional Petition 2 of 2017; averments were speculative and unsupported by evidence; the 2018 consent in this petition had itself been set aside by Kullow, J on 16th December 2019

Reasoning

The respondents deposed that they complied with the consent order through an implementation committee which allocated plots to qualified members, including persons with disabilities, widows and orphans. The petitioner's further affidavit was found largely speculative. The petitioner also had an unexercised avenue to compel performance of duties rather than a constitutional petition.

p. 7
03

Exhaustion of remedies under the Land Adjudication Act

Holding

The petitioner should have exhausted the dispute-resolution mechanisms in the Land Adjudication Act, including appeal to the Minister under Section 29, before approaching the court, and then only by way of judicial review

Reasoning

The court held that grievances about non-implementation of objection decisions (objections 41 and 44 concerning parcels 2685 and 2687) fall within avenues provided under the Land Adjudication Act. The petitioner did not pursue those remedies, so the constitutional petition was premature in respect of those complaints.

p. 7

Legal principles established

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  • A petitioner litigating in the interest of a group must identify an ascertainable class of persons directly affected
  • A party alleging non-compliance with a consent order bears the burden of proving the non-compliance
  • Disputes arising in land adjudication must first exhaust remedies under the Land Adjudication Act, including appeal to the Minister under Section 29, before invoking the court's jurisdiction by way of judicial review

Court orders

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  1. 1.The petition dated 13th April 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19, 20, 21, 22, 23, 27, 28, 35, 40, 43, 47(1), 50, 53, 56, 57, 60, 63, 165(3)(b), 258, 259(1)(b)
  • Land Adjudication ActSection 29
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 1 Rule 8 and 13

Cases cited (9)

  • Gitson Energy Limited versus Francis Chachu Ganya & 6 Others
    [2017] eKLR

    Relied on by petitioner on violation of consent order terms

  • PZ Cussons East Africa Limited versus Kenya Revenue Authority
    [2013] eKLR

    Relied on by petitioner on right to fair administrative action under Article 47

  • Barua Gituma & 6 Others versus National Land Commission & 3 Others; Mugao Njagi (Interested Parties) & 132 Others
    [2019] eKLR

    Relied on by petitioner on fair administrative action

  • Joseph Mudamba Ojwang versus John Opondo Onyango & 4 Others
    [2022] eKLR

    Relied on by respondents on premature invocation of jurisdiction before exhausting statutory remedies

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

    Relied on by respondents on adjudication dispute-resolution procedure

  • Jimmy Parnyumbe Luka & 3 Others versus Chairman Land Adjudication Committee Leshuta Land Adjudication Section & 6 Others
    [2021] eKLR

    Relied on by respondents on exhaustion of adjudication remedies

  • Speaker of National Assembly versus James Njenga Karume
    (1992) KLR 21

    Relied on by respondents for exhaustion of primary statutory remedies before constitutional recourse

  • Gabriel Mutava & 2 Others versus Managing Director Kenya Ports Authority & Another
    [2016] eKLR

    Relied on by respondents on exhaustion of alternative dispute-resolution mechanisms

  • Daniel Musili Nyeki & 49 Others versus Cabinet Secretary of Lands & Settlement & Another; Benard Malonza Musya & 30 Others (Interested Parties)
    [2021] eKLR

    Relied on by interested parties on failure to establish membership and pursue appeals

Jurisdiction invoked
Articles 22, 23 and 165(3)(b) of the Constitution of Kenya (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, "Luka v Chairman, Land Adjudication Committee, Leshuta Adjudication Section & 3 others; Olopirikany & 7 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18900/eng@2023-07-25

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