Kasimu & 3 others v Director of Land Adjudication & Settlement & 5 others
The bottom line
#A Kenyan court dismissed siblings' land and information claims because they skipped the required complaint procedures before going to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the right of access to information under Article 35 was violated
No violation established against the 1st to 4th Respondents; the claim fails against the 5th Respondent because the information request was never addressed to it; the Petitioners bypassed the Section 14 review mechanism before the Commission on Administrative Justice
The letter of 4-08-2021 was directed at the 1st to 4th Respondents, who never responded, and under Section 9(6) silence for 21 days is deemed refusal. However, Section 14 provides a review remedy before the Commission on Administrative Justice which the Petitioners never invoked. The 5th Respondent never received the request, so no claim lies against it. Following Mutanga Tea and Savraj Singh Chana, the statutory mechanism had to be exhausted first.
Whether the Petitioners' Article 40 property rights to Yatta/Ilika/1471 and Plot 21 were violated
Not proved; the Land Adjudication Act provides an elaborate dispute resolution mechanism (claims to the recording officer, objections under Section 26, appeals to the Minister under Section 29) which the Petitioners and their mothers never used
The Petitioners did not demonstrate that they or their mothers filed claims or objections during adjudication. Their mothers, who were alive and each secured substantial parcels (37.94 Ha and 40.70 Ha), would have objected had the allocations been considered unlawful. Allegations of illiteracy and family appointment of the 6th Respondent were unproved questions of fact. The adjudication process, once completed, confers title protected under Article 40.
Whether this Court has jurisdiction over the petition given the preliminary objection
The petition is not properly before the court; the Access to Information Act channels disputes to the Commission on Administrative Justice, with appeals to the High Court only from the Commission's decisions under Section 23(3)
Relying on Katiba Institute, Mutanga Tea, Vania Investment Pool and Savraj Singh Chana, the court held that where a statute prescribes a specific dispute resolution mechanism, it must be strictly followed. The Commission on Administrative Justice holds original jurisdiction over access-to-information complaints, and the High Court's role is appellate under Section 23(3).
Legal principles established
#- Where a statute prescribes a specific dispute resolution mechanism, that procedure must be strictly followed before invoking the court's jurisdiction
- Failure by a public officer to decide an information request within 21 days is deemed a refusal under Section 9(6) of the Access to Information Act
- The High Court does not enjoy both original and appellate jurisdiction over Access to Information matters where the Commission on Administrative Justice has been given jurisdiction
- Land adjudication is the legally recognised process conferring individual title to trust land, and such titles are protected under Article 40
Court orders
#- 1.The petition is dismissed
- 2.Costs are awarded to the 1st to 5th Respondents
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution of Kenya 2010 (constitutional petition for enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasimu & 3 others v Director of Land Adjudication & Settlement & 5 others", Case Analysis (2023). Constitutional Petition E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20027/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.