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ELCDismissedPetition No E001 of 2023· [2024] KEELC 1096 (KLR)

Mwirabua & another v National Land Commission & 2 others (Petition E001 of 2023) [2024] KEELC 1096 (KLR)

Environment and Land Court
29 February 2024
3,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Chuka dismissed a land petition because the owners never used the appeal process under the Land Adjudication Act before going to court.

What this practically means

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Executive summary

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The 2nd Respondent filed a notice of preliminary objection dated 24th May, 2023 seeking the striking out of the petitioners' constitutional petition, which challenged a 2006 award of land parcels to the 3rd Respondent by the Land Adjudication Officer following objection proceedings. The objection raised seven grounds: defectiveness and abuse of process, want of jurisdiction given the statutory appeal mechanism under the Land Adjudication Act, statutory time bar under section 7 of the Limitation of Actions Act, failure to exhaust alternative remedies, and failure to meet the Anarita Karimi Njeru threshold for constitutional petitions. The 2nd Respondent, acting through the office of the Attorney General, argued the petitioners participated in the 2006 objection proceedings but never appealed to the Minister under section 29 within sixty days. The petitioners countered that they were not on appeal but on constitutional violations of Articles 26, 27 and 40, invoking the Environment and Land Court Act and contending that rights violations are continuous. Yano J, applying Mukisa Biscuits on preliminary objections and Owners of Motor Vessel 'Lilian S' on jurisdiction, held the objection well taken. Relying on Karume, Muthinja Kabiru, Mutanga Tea and Meru ELC authority, the court held that the statutory appeal process under the Land Adjudication Act had not been exhausted, that the petitioners' Article 40 rights had not crystallized, and that the petition was prematurely filed, incompetent, time barred and an abuse of process. The petition dated 18th November 2022 was dismissed with costs to the Respondents.

Key legal issues

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01

Jurisdiction where a statutory appeal mechanism exists under the Land Adjudication Act

Holding

The court lacks jurisdiction because the petitioners did not exhaust the appeal to the Minister under section 29 of the Land Adjudication Act before filing the petition; the petition was prematurely filed and incompetent.

Reasoning

The Land Adjudication Act provides an elaborate procedure for ascertainment of rights in community land, including objections under section 26 and appeals to the Minister under section 29. The 2nd Petitioner participated in the 2006 objection proceedings and did not appeal. Following Karume, Muthinja Kabiru and Mutanga Tea, the court cannot usurp the statutory dispute resolution mechanism, and rights under Article 40 had not crystallized while the adjudication appeal process remained unexhausted.

p. 6
02

Whether the petition is statutorily time barred

Holding

The objection raising limitation is well taken as a pure point of law, the cause of action having arisen in 2006, some 17 years before suit, with no leave sought to file out of time.

Reasoning

The 2nd Respondent relied on section 7 of the Limitation of Actions Act, which bars actions to recover land after twelve years. The impugned award was made in 2006 and the petitioners offered no explanation for the delay nor sought extension of time. The court treated limitation, alongside jurisdiction, as properly raised by preliminary objection under the Mukisa Biscuits principles.

p. 5
03

Whether the petition meets the constitutional petition threshold (Anarita Karimi Njeru)

Holding

The petition did not meet the threshold, as the petitioners failed to particularize how the respondents violated their rights to property and fair administrative action, rendering the petition an abuse of process.

Reasoning

Applying Rule 10 of the 2013 Practice and Procedure Rules and the Anarita Karimi Njeru standard, a petition must disclose the constitutional provisions violated and the manner of violation. The petitioners attended and gave evidence in the 2006 objection proceedings, so no fair administrative action violation could arise, and their suit was characterized as a fishing expedition seeking to circumvent statutory limitation and appeal timelines.

p. 3

Legal principles established

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  • Where there is a clear statutory procedure for redress of a particular grievance, that procedure must be strictly followed before invoking the constitutional jurisdiction of the court
  • The exhaustion doctrine requires a party first to pursue the dispute resolution mechanisms prescribed by statute before approaching the court

Court orders

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  1. 1.The preliminary objection dated 24th May, 2023 is upheld and the petition dated 18th November, 2022 is dismissed
  2. 2.The petition is dismissed with costs to the Respondents

Authorities

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Legislation

  • Land Adjudication Actsections 26, 27, 28, 29
  • Limitation of Actions Actsection 7
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2013Rule 10
  • Constitution of KenyaArticles 26, 27, 40, 159(2)(c), 162(2)(b), 165(3)(a)
  • Environment and Land Court Actsection 13
  • Land Registration Act

Cases cited (15)

  • Kiroket Ole Punyua –vs- Umash Ole Mwanik & 2 others
    (2012) eKLR
  • Speaker of the National Assembly –vs- James Njenjga Karume
    (1992) eKLR / [1992] KLR 425
  • Mutanga Tea & Coffee Company Ltd. –vs- Shikara Ltd. & Another
    (2015) eKLR / [2015] EKLR
  • Geoffrey Muthinja Kabiru & 2 Others –vs- Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Edward Moonge Lengasuranga –vs- James Lanaiyara & Another
    [2019] eKLR
  • Bosire Ongero –vs- Royal Media Services
    [2015] eKLR
  • James Gacheru Kariuki & 19 Others –vs- County Government of Mombasa & 56 others
    [2019] eKLR
  • East Africa Pentecostal Churches Registered Trustees & 1754 Others –vs- Samwel Muguna Henry & 4 Others
    [2015] eKLR
  • Anarita Karimi Njeru –vs- Republic
    (1979) KLR
  • Owners of Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Limited
    (1989) KLR 1 / [1989] KLR 1
  • Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & Others
    [2012] eKLR
  • West Kenya Sugar Co. Ltd. –vs- Busia Sugar Industries Limited & 2 Others
    [2017] EKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd
  • Justus Mugaa M'Impwi –vs- District Land Adjudication & Settlement Officer, Tigania West/East District & Another
    [2018] eKLR (ELC (Meru) Petition 7B of 2013)
  • Reuben Mwongela M'itelekwa (Suing as the Legal Representative of the estate of M'Itelekwa M'mucheke Naituri alias M'itelekwa Mucheke) –vs- Paul Kigea Nabea
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 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, "Mwirabua & another v National Land Commission & 2 others (Petition E001 of 2023) [2024] KEELC 1096 (KLR)", Case Analysis (2024). Petition No E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1096/eng@2024-02-29

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