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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Land Adjudication and Settlement Officer had jurisdiction to register the Interested Parties as owners of the suit parcels
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
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.
Whether the Respondents' objection of res judicata/lack of jurisdiction raised only in submissions could sustain dismissal
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
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.
Whether the Petitioners' constitutional rights were violated
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
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.
Legal principles established
#- 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
#- 1.The petition dated 9/3/2023 is dismissed
- 2.Costs of the petition awarded to the Respondents
- 3.The Interested Parties, having not participated, are not entitled to any costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.