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ELCDismissedELC Petition No. E005 of 2023· [2024] KEELC 4183 (KLR)

Ndurya & another v and Adjudication and Settlement Officer Kinango Sub County & 2 others; Idi & 2 others (Interested Parties) (Environment & Land Petition E005 of 2023) [2024] KEELC 4183 (KLR)

Environment and Land Court
26 April 2024
2,908 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed a clan's land petition, holding the adjudication officer simply implemented a court-adopted award that favoured the other family.

What this practically means

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Executive summary

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The Petitioners, members of the Mwamkala Clan, petitioned the Environment and Land Court at Mombasa claiming that the Land Adjudication and Settlement Officer for Gandini had no power to review, alter or set aside a court order. They relied on a 1988 tribunal award in Ndurya Said Ndurya v Juma Idd, adopted as a court order in Mombasa CMCC No. 24 of 1988, under which they said they should have been registered as owners of parcels 792, 937 and 1369 as successors of Ndurya Said Ndurya. Instead, the Interested Parties, successors of Juma Idd, were registered. They sought declarations, injunctive and mandatory orders, alleging violations of Articles 10, 20, 21, 22, 27, 40, 47 and 159. The Respondents filed a replying affidavit confirming the adjudication officer demarcated the parcels to the Interested Parties per the court order, and argued the petition was res judicata and scandalous. The Interested Parties were served twice but did not participate. The court held that the res judicata objection, raised only in submissions, could not be determined since submissions are not evidence. On the merits, the tribunal verdict awarded the plot to Jumaa Idd; the adjudication officer merely perfected the adopted court order and acted within jurisdiction. The Petitioners never pursued the statutory objection or appeal to the Minister under the Land Adjudication Act, and failed to plead and prove their constitutional violations with precision and evidence. The petition dated 9/3/2023 was dismissed with costs to the Respondents, the non-participating Interested Parties receiving no costs.

Key legal issues

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01

Whether the Land Adjudication and Settlement Officer had jurisdiction to register the Interested Parties as owners of the suit parcels

Holding

The officer acted within jurisdiction; the duty was simply to perfect the court-adopted award which belonged to Juma Idd, whose successors are the Interested Parties

Reasoning

The tribunal verdict awarded the plot to Jumaa Idd and declared Ndurya Said Ndurya had no right over it. Those orders were adopted by the magistrate's court in Mombasa CMCC 24 of 1988. The adjudication officer merely implemented the perfected order by demarcating parcels 792, 937 and 1369 to the Interested Parties. The Petitioners were never awarded the land and their grievance lay in the statutory objection/appeal procedure, which they never pursued.

p. 5
02

Whether the Respondents' objection of res judicata/lack of jurisdiction raised only in submissions could sustain dismissal

Holding

No - submissions are not evidence and do not form part of pleadings, so the res judicata point raised only in submissions could not be determined

Reasoning

The court held that the issue of res judicata informing the jurisdictional objection was raised in submissions only. Submissions do not form part of pleadings and contain no evidence, so the court could not rely on them to decide whether issues had been previously litigated. Nonetheless, the court found it possessed jurisdiction over the main dispute, being the challenge to the adjudication officer's registration decision.

p. 4
03

Whether the Petitioners' constitutional rights were violated

Holding

No violation was proved; the Petitioners failed to plead with reasonable precision or prove by evidence the alleged violations of Articles 10, 20, 21, 22, 27, 40, 47 and 159

Reasoning

Applying Anarita Karimi Njeru, constitutional violations must be pleaded with reasonable precision and the manner and extent of violation shown by evidence based on the pleadings. The Petitioners did not clearly elaborate how the adjudication officer's decision infringed the cited articles, including on fair administrative action, and failed to prove the violations by evidence.

p. 6

Legal principles established

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  • A land adjudication officer whose duty is to perfect a court-adopted award acts within jurisdiction by registering the persons declared entitled by that award
  • A person aggrieved by an adjudication determination must pursue the statutory objection and appeal to the Minister under the Land Adjudication Act
  • Submissions are not evidence and cannot form the basis of a finding on res judicata or jurisdiction
  • Constitutional violations must be pleaded with a reasonable degree of precision and proved by evidence

Court orders

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  1. 1.The petition dated 9/3/2023 is dismissed
  2. 2.Costs of the petition awarded to the Respondents
  3. 3.The Interested Parties, having not participated, are not entitled to any costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20, 21, 22, 23, 27, 40, 47, 159
  • Land Adjudication ActSections 9, 10, 12, 21(3), 26, 29(1), 30
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 rule 15

Cases cited (5)

  • Geofirey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • County Council of Nandi v Ezekiel Kibet Ruto & 6 Others
    [2013] eKLR
  • Ngang'a & Another vs. Owiti & Another
    [2008] 1 KLR (EP) 749
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
Jurisdiction invoked
Article 23 and 165 of the Constitution (constitutional petition under Articles 10, 20, 21, 22, 27, 40, 47 and 159 as pleaded by the Petitioners)

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, "Ndurya & another v and Adjudication and Settlement Officer Kinango Sub County & 2 others; Idi & 2 others (Interested Parties) (Environment & Land Petition E005 of 2023) [2024] KEELC 4183 (KLR)", Case Analysis (2024). ELC Petition No. E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4183/eng@2024-04-26

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