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ELCDismissedPetition filed 11.10.2022 (Embu ELC) - number not stated in judgment· [2024] KEELC 1527 (KLR)

Mbumbui & another v Giaka & 5 others (Constitutional Petition E004 of 2022) [2024] KEELC 1527 (KLR)

Environment and Land Court
28 February 2024
2,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a land petition because the owners used the wrong legal route: disputes over government land decisions must go through judicial review after exhausting internal appeals.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated 07.03.2023 raised by the 3rd to 6th respondents (the Minister for Lands and Physical Planning, the Deputy County Commissioner - Mbeere North, the Chief Land Registrar and the Attorney General) against a petition filed by Nyaga Mbumbui and Silas Ngungi Ivaka. The petition challenged the decision of the Deputy County Commissioner, acting for the Minister, which upon withdrawal of Minister's appeal no. 280 of 2011 directed that both families benefit from land parcel Mbeere/Mutitu/16, leading to the registration of the 1st and 2nd respondents as sole proprietors. The petitioners sought declarations that the registration and the Deputy County Commissioner's decision were illegal, unconstitutional, null and void, and orders for cancellation of the register entry and administration of the land under the Law of Succession Act and the Land Registration Act. The respondents argued the court lacked jurisdiction: the petitioners had not exhausted statutory remedies and should have pursued judicial review under the Fair Administrative Action Act, the doctrine of exhaustion/avoidance applying. The court applied Mukisa Biscuits on what constitutes a preliminary objection, and held that Article 47 is operationalized through the Fair Administrative Action Act, whose sections 7 and 9 require judicial review of administrative action after exhaustion of remedies. Concluding that the impugned decision was an administrative action challengeable only by judicial review, which examines process rather than merits, the court upheld the objection and dismissed the petition with costs to the respondents.

Key legal issues

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01

Whether the court lacks jurisdiction over the petition because the petitioners did not exhaust statutory remedies and adopted the wrong procedure (constitutional petition instead of judicial review)

Holding

The preliminary objection has merit; the petition is dismissed for want of jurisdiction.

Reasoning

The impugned decision of the Deputy County Commissioner acting for the Minister is an administrative action. Under sections 7 and 9 of the Fair Administrative Action Act, such decisions are reviewable only by judicial review, and only after exhaustion of all available remedies under other written law. The petitioners did not invoke that procedure, seeking instead to impugn the merits of the decision by constitutional petition. Judicial review examines the decision-making process, not the merits. The petitioners' reliance on Article 47 does not assist because that Article is operationalized through the Fair Administrative Action Act, whose procedure they did not follow.

p. 5
02

Whether the objection qualifies as a proper preliminary objection

Holding

Yes - jurisdiction is a pure point of law raiseable by way of preliminary objection.

Reasoning

Following Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and if upheld must render further proceedings impossible or unnecessary. Quick Enterprises Ltd v Kenya Railways Corporation confirms that preliminary points must be capable of disposing of the matter without ascertaining facts from elsewhere. Jurisdiction, being a pure point of law, qualifies.

p. 3

Legal principles established

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  • An administrative decision of the Deputy County Commissioner/Minister can only be challenged by way of judicial review, which examines the decision-making process and not the merits
  • Article 47 of the Constitution is operationalized by the Fair Administrative Action Act, and challenges under it must follow the procedure in that Act
  • A preliminary objection must raise a pure point of law capable of disposing of the suit without ascertaining facts
  • Under Section 9(2) of the Fair Administrative Action Act, a court shall not review an administrative action unless internal and statutory remedies are first exhausted

Court orders

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  1. 1.The preliminary objection dated 07.03.2023 is upheld as having merit
  2. 2.The petition is dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 22(3)
  • Fair Administrative Action ActSection 7
  • Fair Administrative Action ActSection 9(1)-(5)
  • Land Adjudication Actfinality of Minister's decision
  • Law of Succession ActCap 160
  • Land Registration Act2012

Cases cited (11)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • Mary Wambui Munene v Peter Gichuki Kingara & 6 Others
    (2014) EKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Communications Commission of Kenya and 5 Others v Royal Media Services Ltd and 5 Others
    (2014) EKLR
  • KKB v SCM & 5 Others
    (2022) KEHC 289
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslim for Human Rights & 2 others (Interested Parties)
    (2020) EKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) EKLR
  • Democratic Alliance v The President of the Republic of South Africa & 3 others
    CCT 122/11 (2012) ZACC 24
  • Philmark Systems Co Ltd v Andermore Enterprises
    (2018) EKLR
  • Muka & Anor Malala & 12 others
    (2022) KEHC 1031
  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
Jurisdiction invoked
Constitution of Kenya, 2010 (Environment and Land Court jurisdiction over land disputes; Article 47 invoked by petitioners); Fair Administrative Action Act, Sections 7 and 9 considered

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, "Mbumbui & another v Giaka & 5 others (Constitutional Petition E004 of 2022) [2024] KEELC 1527 (KLR)", Case Analysis (2024). Petition filed 11.10.2022 (Embu ELC) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1527/eng@2024-02-28

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