Migiro (Suing on Behalf of the Late Christopher Orenge Makori) v James & another (Environment & Land Petition E001 of 2022) [2024] KEELC 5965 (KLR)

Section 3(1) of the Land Disputes Tribunal Act confined tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The claim lodged by the 1st respondent was in substance a challenge to the deceased's ownership and the validity of his title, a matter outside the tribunal's mandate. The boundary recommendation did not convert the dispute into a boundary dispute.

Although the Act provided for appeals and certiorari lay within six months, by the time the petitioner moved court the Act had been repealed and the judicial review window had closed. Following Lemita Ole Lemein rather than Joseph Maren, the court held that where no other avenue of redress exists, a petition alleging violation of the right to property cannot be shut out. The Magistrates' Court erred in adopting a void award.

Relying on Monica Wangu Wamwere, constitutional violations suffer no limitation, subject to case-by-case assessment. Here the title was never cancelled, the 1st respondent never took possession, and a competent court had already decided in the deceased's favour in 2004, so the delay did not amount to acquiescence.

The Supreme Court in Zehrabanu Janmohamed held that Article 40 embodies the Section 75 right carried forward into the 2010 Constitution. Equally, certiorari under the Constitution for enforcement of the Bill of Rights is not subject to the six-month period applicable to ordinary judicial review under Order 53.