Ndatho v Gitonga & 3 others (Environment and Land Constitutional Petition E002 of 2022) [2024] KEELC 6270 (KLR)
The bottom line
#A Kenyan land petitioner skipped the appeal to the Minister and went straight to court, which dismissed his case for lack of jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and the exhaustion of statutory dispute resolution mechanisms
The court had no jurisdiction because the petitioner, aggrieved by the Land Adjudication Officer's decision in objection No. 221/2021, did not appeal to the Minister within 60 days as required by section 29 of the Land Adjudication Act before coming to court.
The court applied the doctrine of exhaustion as articulated in Owners of the Motor Vessel 'Lillian S', Muthinja Kabiru and Hulbhai Gedi Abdille. Since there was an objection decided by the 3rd respondent, the petitioner participated in those proceedings, and section 29 of the Land Adjudication Act provides an appeal to the Minister whose decision is final, resorting to a constitutional petition without exhausting that remedy robbed the court of jurisdiction.
Whether the petition meets the constitutional threshold under Anarita Karimi Njeru and Mumo Matemu
The petition failed to raise any constitutional issue; the disputes belonged to the adjudication process, and the petitioner did not prove the alleged infringements to the required standard.
Applying the Anarita Karimi Njeru precision standard as moderated in Trusted Society of Human Rights Alliance, the court found the petition did not raise a justiciable constitutional controversy. Citing Benard Murage, the court held that where a statutory remedy exists it should be pursued first, and the petitioner, who had also filed Marimanti ELC Case No. 17 of 2018, failed to prove the alleged violations.
Whether the petitioner is entitled to the relief sought
Not entitled; the petition was dismissed with costs.
Having found no jurisdiction and no properly framed constitutional violation, the court declined all reliefs, including nullification of the objection decision, declaration of ownership of parcel 1811, and injunctions against the 1st and 2nd respondents.
Legal principles established
#- Where a statute provides a dispute resolution mechanism, a party must exhaust it before invoking the court's jurisdiction
- Where an alternative statutory remedy exists, not every violation of the law should be raised as a constitutional issue
Court orders
#- 1.The petition has no merit and is dismissed
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Article 165(1) of the Constitution (constitutional petition for enforcement of fundamental rights); dispute arising under the Land Adjudication Act Cap 284
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndatho v Gitonga & 3 others (Environment and Land Constitutional Petition E002 of 2022) [2024] KEELC 6270 (KLR)", Case Analysis (2024). Petition dated 16th December, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6270/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.