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ELCDismissedPetition dated 16th December, 2022· [2024] KEELC 6270 (KLR)

Ndatho v Gitonga & 3 others (Environment and Land Constitutional Petition E002 of 2022) [2024] KEELC 6270 (KLR)

Environment and Land Court
25 September 2024
6,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioner, a cousin of the 1st and 2nd respondents, petitioned the Environment and Land Court at Chuka seeking declarations that the decision of the 3rd respondent (the Land Adjudication & Settlement Officer) dated 18th November 2021 in objection No. 221/2021 - which awarded land parcel No. 1811 Kamaguna Adjudication Section to the 1st respondent - was null and void for violating his rights to property, fair hearing and fair administrative action. He also sought reversal of the decision, declaration of ownership of parcel 1811 and injunctions. He claimed his father had purchased the parcel from the respondents' father before demarcation in 1989 and the family had occupied it for nearly 50 years, and that the decision was read in his absence without notice, misleading him until the statutory limitation under the Land Adjudication Act Cap 284 lapsed. The respondents countered that the petitioner participated in the objection proceedings and had an unexhausted statutory right of appeal to the Minister under section 29 of the Act; the 3rd and 4th respondents added that the petition failed the Anarita Karimi Njeru precision threshold. The court framed four issues: jurisdiction, constitutional threshold, entitlement to relief, and costs. Applying the exhaustion doctrine as articulated in Lillian S, Muthinja Kabiru and Hulbhai Gedi Abdille, the court held it had no jurisdiction because the petitioner had not appealed to the Minister. It further found the petition raised no constitutional issues and that infringement was not proved to the required standard. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction and the exhaustion of statutory dispute resolution mechanisms

Holding

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.

Reasoning

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.

p. 10
02

Whether the petition meets the constitutional threshold under Anarita Karimi Njeru and Mumo Matemu

Holding

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.

Reasoning

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.

p. 12
03

Whether the petitioner is entitled to the relief sought

Holding

Not entitled; the petition was dismissed with costs.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The petition has no merit and is dismissed
  2. 2.Costs of the petition awarded to the respondents

Authorities

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Legislation

  • Land Adjudication ActCap 284, sections 26, 29
  • Land Consolidation Actsection 26
  • Constitution of KenyaArticle 47, Article 47(2)
  • Land ActNo. 6 of 2012, section 7
  • Civil Procedure Actsection 27(1)
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2013Rule 10

Cases cited (19)

  • Anarita Karimi Njeru vs Republic
    [1979] eKLR; [1976-1980] KLR 72
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    [2013] eKLR
  • Tobias Achola Osindi & 13 others vs Cprianus Otieno Ogalo & 6 others
    [2013] eKLR
  • Speaker of the National Assembly vs Karume
    [1992] KLR 21
  • Geofirey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Reuben Mwongela M'itelekwa v Paul Kigea Nabea & 2 others
    [2019] eKLR
  • Mutanga Tea & Coffee Company Ltd vs Shikara Limited & Another
    [2015] eKLR
  • Gabriel Mutava & 2 others vs Managing Director Kenya Ports Authority & Anor
    [2016] eKLR
  • Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others
    [2020] eKLR
  • Kiroket Ole Punyua v Umash Ole Mwanik & 2 others
    [2021] eKLR
  • James Gacheru Kariuki & 19 others v County Government of Mombasa & 56 others
    [2019] eKLR
  • East Africa Pentecostal Churches Registered Trustees & 1754 others vs Samwel Muguna Henry & 4 others
    [2015] eKLR
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Mohamed Ahmed Khalid (Chairman) and 10 others Vs Director of Land Adjudication & 2 others
    [2013] eKLR
  • Javan Oscar Bulemi v Permanent Secretary, Ministry of Internal Security and Principal Administration & 2 others
    [2015] eKLR
  • Benard Murage – Vs – Fine Serve Africa Ltd & 3 others
    [2015] eKLR
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

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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, "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.