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ELCDismissedNot stated in judgment; application dated 31.7.2024 in a petition pending since 2021· [2024] KEELC 6554 (KLR)

Osman & 164 others v Northern Rangelands Trust & 8 others (Petition 006 of 2021) [2024] KEELC 6554 (KLR)

Environment and Land Court
8 October 2024
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to hand a pending land petition to a council of elders, confirming that traditional dispute resolution requires everyone's consent.

What this practically means

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Executive summary

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This is a ruling by a three-judge bench of the Environment and Land Court at Meru on an application dated 31.7.2024 brought by Hajj Abdullahi, chairperson of the Borana Council of Elders, a non-party to a constitutional petition pending since 2021 and awaiting judgment after a full hearing by the bench constituted in December 2023. The applicant sought suspension of the judgment and referral of the entire petition to out-of-court negotiation under the Council's auspices, invoking Articles 40, 60(1)(a) and 159(2)(c) of the Constitution and citing the Council's role in the Judiciary's Alternative Justice System policy in Isiolo County. The petitioners opposed the application as irregularly filed by a non-party without leave, brought too late, and an attempt to pre-empt the court's judgment; the 1st–6th respondents supported it while conceding ADR cannot be forced on unwilling parties; the Attorney General and County Commissioner sided with the petitioners. The court held that ADR and TDRM are consensual; a non-party who never sought joinder, disclosed no prior engagement with the parties, and had known of the petition since 2021 could not, without basis or capacity, seek to displace the constitutional adjudicative role of the court; and public interest, expended judicial resources and the prejudice to parties who had fully prosecuted their petition weighed against referral. The application was dismissed with no order as to costs on 8 October 2024.

Key legal issues

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01

Standing and timeliness of a non-party seeking referral of a fully heard petition to ADR

Holding

The application failed; the applicant never sought joinder, disclosed no prior engagement with the parties, and was guilty of inordinate delay

Reasoning

The applicant was aware of the petition since 2021 yet gave no explanation for the late application. It did not seek leave to be joined as respondent, interested party or amicus, nor disclose which parties it had engaged. The constitutional questions before the court required answers from the Constitution, not customary law, and the applicant showed no special expertise to handle issues cutting across multiple respondents.

p. 3
02

Whether Article 159 mandated referral of the dispute to ADR/TDRM

Holding

Article 159 only encourages ADR; it does not compel referral, particularly where referral is against the public interest or the alternative forum cannot grant the reliefs sought

Reasoning

The court held that although Article 159(2)(c) requires courts to promote alternative dispute resolution, there are exceptions, including where referral is not in the public interest or the alternative forum is incapable of granting the reliefs sought. The petitioners had already attempted ADR which failed, and could not be forced into ADR against their will. Judicial and party resources already expended meant judgment should not be suspended or delayed.

p. 3
03

Consent as the foundation of ADR/TDRM

Holding

ADR and TDRM are consensual; referral cannot be imposed on unwilling parties

Reasoning

The court reasoned that because the mechanisms are consensual and the petitioners opposed the referral alleging prejudice, referral at the judgment stage would prejudice parties who had prosecuted their petition to near completion. The applicant also failed to attend court twice to ventilate its application and address the court's concerns.

p. 3

Legal principles established

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  • ADR and TDRM are consensual in nature and cannot be forced on unwilling parties
  • A third party may not without basis walk into court and ask to replace the constitutional role of the court merely because it feels suited to diffuse tension
  • Parties seeking to participate in ADR/TDRM must define their capacity and move the court at the earliest opportunity

Court orders

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  1. 1.The application dated 31.7.2024 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Articles 60(1)(a), 159(2)(c), 40 and 60 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Osman & 164 others v Northern Rangelands Trust & 8 others (Petition 006 of 2021) [2024] KEELC 6554 (KLR)", Case Analysis (2024). Not stated in judgment; application dated 31.7.2024 in a petition pending since 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6554/eng@2024-10-08

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