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ELCDismissedPetition filed 5/9/2021 (as amended 21/9/2011 and 17/2/2015 per judgment) - Embu ELC· [2024] KEELC 968 (KLR)

Mbeere Elders Welfare Advisory Group (Ngome) & 4 others v Attorney General & 7 others; Njeru & 233 others & 2 others (Interested Parties) (Environment & Land Petition 1 of 2014) [2024] KEELC 968 (KLR)

Environment and Land Court
30 January 2024
3,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court ruled that interested parties cannot use a preliminary objection to end a land petition, and Kenyans don't need special consents to file constitutional petitions.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (Kaniaru J) on a preliminary objection dated 20/3/2023 raised by the 250th to 6049th interested parties, through counsel Nzioki and Khaminwa, against a constitutional petition concerning the demarcation, alienation and allocation of the Mwea Land Adjudication areas and the issuance of titles, which the petitioners allege was done without consultation with the Mbeere people. The interested parties objected on four grounds: absence of the mandatory consents under Section 8 of the Land Consolidation Act (Cap 283) and Section 30 of the Land Adjudication Act (Cap 284); that the suit lands fall within already adjudicated sections; non-exhaustion of statutory dispute-resolution mechanisms; and lack of merit warranting striking out. The court applied Mukisa Biscuit and Oraro v Mbaja, holding that the objection was not a true preliminary objection because it rested on contested facts requiring evidence. The court further held, following Methodist Church of Kenya v Fugicha, Muruatetu and Mumo Matemu of the Supreme Court, that interested parties have a circumscribed role and cannot raise preliminary objections or seek to strike out or end a suit. On the consent issue, the court sided with the petitioners, holding that under Articles 19(3), 22(1) and 25(c) of the Constitution, fundamental rights are inherent and persons alleging infringement may come directly to court; requiring statutory consents first would impermissibly limit their right to a fair hearing, consistent with Kibunja. The preliminary objection was dismissed with costs to the petitioners and the respondents on 30 January 2024.

Key legal issues

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01

Whether a true preliminary objection was raised

Holding

No - the objection rests on contested facts requiring evidence, so it fails the Mukisa Biscuit test

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law on admitted or incontrovertible facts. The interested parties opposed the entire petition and admitted nothing; the facts underlying the objection (e.g. whether adjudication was complete and consents required) would require evidence to ascertain. The objection was therefore improperly constituted.

p. 5
02

Whether interested parties may seek striking out of a petition

Holding

No - interested parties have a circumscribed role and cannot seek to end a suit

Reasoning

Relying on Methodist Church of Kenya v Mohamed Fugicha, Muruatetu and Mumo Matemu (Supreme Court), the court held that an interested party's participation is limited to supporting or opposing issues raised by the principal parties; they cannot frame fresh issues, raise preliminary objections or seek striking out, since the case belongs to the primary parties.

p. 6
03

Whether statutory consents under the Land Consolidation and Land Adjudication Acts were prerequisites to filing the petition

Holding

No - where a petition alleges infringement of constitutional rights, the petitioners may come directly to court without such consents

Reasoning

Article 19(3) establishes that rights are inherent and subject only to constitutional limitations; Article 22(1) grants every person the right to institute court proceedings for rights violations, and Article 25(c) makes the right to a fair trial non-derogable. Requiring prior statutory consents would limit these rights. Consistent with Kibunja, constitutional matters take precedence over statutory dispute-resolution machinery.

p. 7

Legal principles established

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  • An interested party cannot raise a preliminary objection seeking to strike out or dismiss a suit; the case belongs to the primary/principal parties
  • Requiring consent under sectoral statutes before filing a constitutional petition alleging infringement of fundamental rights would impermissibly limit the right of access to court under Article 22(1)

Court orders

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  1. 1.The preliminary objection dated 20/3/2023 is dismissed
  2. 2.Costs of the objection awarded to the petitioners and the respondents

Authorities

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Legislation

  • Land Consolidation ActSections 8(1) and (2), 13, 14, 26, 27
  • Land Adjudication ActSections 26, 29, 30, 27, 28
  • Civil Procedure ActSection 27
  • Environment and Land Court ActSection 13(1), (2) and (7)
  • Constitution of KenyaArticles 19(3)(a) and (c), 22(1), 25(c), 162(2) and (3)
  • Co-operative Societies Actnot specified

Cases cited (26)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors
    [1969] EA 696
  • Robert Kinyua Nabea vs Kobia Kiringo & 3 others
    [2018] eKLR
  • Jackson Koome vs M'limongi M'ikuamba & 2 others
    [2018] eKLR
  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    CA No. 50 of 1989, Mombasa [1989] eKLR
  • Samuel Kamau & Another vs Kenya Commercial Bank and two others
    Civil Application No. 2 of 2011 / Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 others
  • Tobias Achola Osindi & 13 others vs Cyprian Otieno Ogalo & 6 others
    HCC No. 4 of 2011
  • Kanampiu M'rimberia vs Julius Kathame & 3 others
    HCC No. 6 of 2009
  • Speaker of National Assembly vs Karume
    CA 092 of 1992
  • Silverio Akubu & 4 others vs Charles Baariu Salasio & 3 others
    ELC PET. No. 29 of 2018
  • Mutanga Tea and Coffee Company vs Shikara Limited & Another
    [2015] eKLR
  • Reuben Mwongela vs Paul Kigea Nabeathe
    [2021] eKLR
  • Justus Mugaa vs District Adjudication & Settlement Officer, Tigania West District & Another
    [2018] eKLR
  • Martha Akinyi Migwambo vs Susan Ongoro Ogendo
    [2022] eKLR
  • Rhoda S. Kiilu vs Jiangxi Water and Hydropower Construction Kenya Limited
    [2021] eKLR
  • Martha Kigen vs Johana Tibino
    [2014] eKLR
  • Republic vs Musanka Ole Runkes Tarakwa Lempaso Ole Kuiyoni & 2 others
    JR No. 13 of 2014
  • Evans Ladtema Muswahili vs Vihiga County Public Service Board & 2 others; Marley Ezekiel Ayiego (interested party)
    [2021] eKLR
  • Republic vs Independent Electoral and Boundaries Commission & Another, Exparte Coalition for Reform and Democracy & 2 others
    [2017] eKLR
  • Moses Barkutwo & 3 others vs District Land Adjudication & Settlement Officer, Elgeyo Marakwet County & Another
    (2021) eKLR
  • Oraro vs Mbaja
    [2005] KLR 141
  • Methodist Church of Kenya vs Mohamed Fugicha and 3 others
    [2019] eKLR
  • Kariuki Muruatetu & Another vs Republic & 5 others
    Sup. Ct. Pet. 15 and 16 of 2015 (consolidated); [2016] eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    Civil Appeal No. 290 of 2012
  • Kibunja vs Attorney & 12 others
    HCC Misc Appl. No. 259 of 1998 [2002] eKLR
  • Owners of the Motor Vessel "Lillian R. v. Karisa Chengo
    [2017] eKLR
  • Nickson Mutinda Musyoki & 9 others vs National Land Commission & 24 others
    [2018] eKLR
Jurisdiction invoked
Article 162(2) and (3) of the Constitution; Section 13(1), (2) and (7) of the Environment and Land Court Act

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, "Mbeere Elders Welfare Advisory Group (Ngome) & 4 others v Attorney General & 7 others; Njeru & 233 others & 2 others (Interested Parties) (Environment & Land Petition 1 of 2014) [2024] KEELC 968 (KLR)", Case Analysis (2024). Petition filed 5/9/2021 (as amended 21/9/2011 and 17/2/2015 per judgment) - Embu ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/968/eng@2024-01-30

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