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ELCDismissedConstitutional Petition E002 of 2021· [2023] KEELC 20027 (KLR)

Kasimu & 3 others v Director of Land Adjudication & Settlement & 5 others

Environment and Land Court of Kenya
21 September 2023
5,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed siblings' land and information claims because they skipped the required complaint procedures before going to court.

What this practically means

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Executive summary

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Four siblings of the late Kasimu Mbatha petitioned the Environment and Land Court at Kitui against the Director of Land Adjudication & Settlement, other land officials, the County Government of Kitui and their brother, Patrick Mutuku Kasimu. They alleged that during the Yatta/Ilika adjudication of their deceased father's 80.7 hectares, the 6th Respondent conspired with adjudication officers to register parcels Yatta/Ilika/589-592 and 1471 in the names of others and himself, disinheriting them on account of age and sex. They sought certified adjudication records, a declaration that the 6th Respondent holds Yatta/Ilika/1471 and Plot 21 Ngovu Market in trust for the family, an injunction, and registration of their interests as overriding interests. The 5th Respondent raised a preliminary objection on jurisdiction under the Access to Information Act; the 1st to 4th Respondents contended the Petitioners never used the Land Adjudication Act's claim and objection procedures. The court framed two issues: violation of Article 35 access to information and Article 40 property rights. It held that the information request was never made to the 5th Respondent, that failure to respond within 21 days amounted to deemed refusal, but that the Petitioners bypassed the Section 14 review mechanism before the Commission on Administrative Justice, to which the Act channels such disputes. On the property claim, the mothers were alive, secured substantial parcels themselves, and never objected under Section 26. The petition was dismissed with costs to the 1st to 5th Respondents.

Key legal issues

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01

Whether the right of access to information under Article 35 was violated

Holding

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

Reasoning

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.

p. 7
02

Whether the Petitioners' Article 40 property rights to Yatta/Ilika/1471 and Plot 21 were violated

Holding

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

Reasoning

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.

p. 9
03

Whether this Court has jurisdiction over the petition given the preliminary objection

Holding

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)

Reasoning

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

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  • 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

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  1. 1.The petition is dismissed
  2. 2.Costs are awarded to the 1st to 5th Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 22, 22(1), 23, 35, 35(1), 40, 165
  • Access to Information ActSections 4, 6, 8, 9, 9(6), 14, 20, 21, 22, 23, 23(2), 23(3), 23(5)
  • Land Adjudication Act Cap 284Sections 15, 18(1), 21, 26, 26(1), 29

Cases cited (8)

  • Katiba Institute v Presidents Delivery Unit & 3 others
    [2017] eKLR

    State organs have a constitutional and legal obligation under Article 35 to allow access to information held on behalf of the public

  • Lepore Ole Maito vs. Letwat Kortom & 2 others
    [2016] eKLR

    The Land Adjudication Act sets an elaborate procedure for establishing rights and interests in land; the Minister's determination under Section 29 is final

  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR

    Where a sufficient and adequate alternative forum exists, a party ought to pursue that avenue rather than invoke the court process

  • Mutanga Tea & Coffee Company Ltd v Shikara Limited and Municipal Council Of Mombasa

    An aggrieved party must resort to a statutorily prescribed dispute resolution mechanism before invoking the High Court's inherent jurisdiction

  • Speaker Of The National Assembly V. Karume

    Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed

  • Kones V. Republic & Another Ex Parte Kimani Wa Nyoike & 4 Others
    (2008) 3 KLR (ER) 296

    Cited within the Mutanga Tea excerpt on strict adherence to prescribed procedures

  • Vania Investment Pool Ltd. V. Capital Markets Authority & 8 Others
    Ca No 92 Of 2014

    Upheld striking out of a judicial review application where the applicant failed to first refer the dispute to the Capital Markets Appeals Tribunal

  • Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another
    [2020] eKLR

    Parliament did not intend to bestow both original and appellate jurisdiction on the High Court in Access to Information matters; the Commission on Administrative Justice has original jurisdiction

Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010 (constitutional petition for enforcement of Bill of Rights)

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, "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.