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ELCDismissedNotice of Motion dated 31st October 2023 (in a Petition re: land parcel No. 780 Nzuuni Adjudication Section)· [2025] KEELC 455 (KLR)

Ndolo v Deputy County Commissioner Makueni Sub-County (Environment & Land Petition E002 of 2023) [2025] KEELC 455 (KLR)

Environment and Land Court
5 February 2025
TMT. Murigi
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner challenging a Minister's land adjudication decision must use judicial review, not a constitutional petition.

What this practically means

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Executive summary

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The Applicant, Mwangangi Iluta Ndolo, moved the court by Notice of Motion dated 31st October 2023 under Sections 4, 6 and 12 of the Fair Administrative Action Act, seeking a conservatory order staying implementation of a ruling of the Deputy County Commissioner Makueni Sub-County delivered on 5th September 2022 in Appeal to the Minister Case No. 262 of 1997 over land parcel No. 780 Nzuuni Adjudication Section, together with certiorari to quash that decision and prohibition against the Land Registrar and District Surveyor Makueni County from implementing it. The Minister had allowed the appeal and directed that one acre be excised from parcel No. 780 and registered in the name of Malia Mutisya Kasuni. The Applicant contended the appeal was lodged out of time and without leave, that the proceedings were marred by procedural irregularities, and that the decision violated Article 47 of the Constitution and his right to property. The Respondent filed no response. The court framed a single issue: whether the Applicant was entitled to the orders sought. It held that the Minister's decision was an administrative action reviewable under Section 7 of the Fair Administrative Action Act, and that the Applicant, aggrieved by the decision-making process and legality of the decision, ought to have pursued judicial review rather than a constitutional petition. Applying the Speaker of the National Assembly v Karume principle and related authorities, the court held that the Applicant could not bypass the statutory procedure. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicant is entitled to conservatory, certiorari and prohibition orders in a constitutional petition challenging the Minister's decision in an appeal under Section 29 of the Land Adjudication Act

Holding

The application was dismissed because the Applicant should have sought judicial review under Section 7 of the Fair Administrative Action Act rather than litigate by constitutional petition

Reasoning

The court found that the Minister's decision was an administrative action, and Section 7 of the Fair Administrative Action Act provides a specific procedure for its review by a court. Relying on the Speaker of the National Assembly v Karume principle and cognate authorities, the court held that where a clear statutory procedure exists for redress, it must be strictly followed. The Applicant's grievance concerned the decision-making process and legality of the Minister's decision, which is quintessentially judicial review, and a constitutional petition could not bypass the statute.

p. 5

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • A minister's decision under the Land Adjudication Act is an administrative action reviewable only by way of judicial review, and a constitutional petition cannot bypass the Fair Administrative Action Act

Court orders

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  1. 1.The application dated 31st October 2023 is hereby dismissed with no orders as to costs

Authorities

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Legislation

  • Fair Administrative Action ActSections 4, 6, 7, 12; Section 4(3)(b)
  • Land Adjudication ActSection 29
  • Constitution of Kenya, 2010Articles 22, 23, 24, 47, 50(1)
  • Civil Procedure RulesOrder 53

Cases cited (4)

  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • East Africa Gas Co Ltd and Another v National Land Commission & 3 Others
    (2013) eKLR
  • Onesmus Daniel Masumbuko & Others v Augustino Baya Thotho
    (2019)
  • Anarita Karimi Njeru v R
Jurisdiction invoked
Articles 22, 23 and 47 of the Constitution; Sections 4, 6, 7 and 12 of the Fair Administrative Action Act No. 4 of 2015

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, "Ndolo v Deputy County Commissioner Makueni Sub-County (Environment & Land Petition E002 of 2023) [2025] KEELC 455 (KLR)", Case Analysis (2025). Notice of Motion dated 31st October 2023 (in a Petition re: land parcel No. 780 Nzuuni Adjudication Section). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/455/eng@2025-02-05

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