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ELCStruck OutEnvironment and Land Petition dated 26th March, 2021 (amended 27th June, 2023), Kericho· [2025] KEELC 3089 (KLR)

Chemurwok & another v Director of Land Adjudication and Settlement & 3 others (Environment & Land Petition E002 of 2021) [2025] KEELC 3089 (KLR)

Environment and Land Court of Kenya
3 April 2025
5,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kericho struck out a land petition, ruling that ordinary civil suits, not constitutional petitions, should resolve such disputes.

What this practically means

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Executive summary

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The Petitioners, administrators of the estate of Daniel Chepkeiyo Chemurwok (deceased), petitioned the Environment and Land Court at Kericho seeking declarations under Articles 27 and 40 of the Constitution, orders of prohibition and mandamus compelling the 1st Respondent (Settlement Fund Trustee) to discharge and transfer LR No. 8700/2 Manori Farm and the 3rd Respondent to issue a title deed. They alleged the deceased repaid his Settlement Fund Trustee loan in 1985 but the charge was never discharged, despite confirmation letters from the County Land Adjudication and Settlement Officer in 1993 and 2016. The 1st Respondent countered that LR No. 8700 was never subdivided into LR No. 8700/2; rather, the original title was surrendered in 1991 and subdivided into seventy-five portions with titles issued to all beneficiaries, including the deceased. The 3rd and 4th Respondents raised jurisdictional objections, citing Sections 26, 29 and 30 of the Land Adjudication Act on consent and exhaustion of dispute resolution mechanisms. The Court framed three issues: whether its jurisdiction was properly invoked, whether the Petitioners were entitled to the orders sought, and costs. Relying on Anarita Karimi Njeru and constitutional avoidance authorities including the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the Court held that the core dispute - whether LR No. 8700 was subdivided into three or seventy-five parcels - was purely civil and should be pursued in an ordinary civil suit. Invoking constitutional avoidance, it declined jurisdiction, held the prayers could not be granted, and struck out the amended petition with costs to the 1st, 3rd and 4th Respondents.

Key legal issues

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01

Whether the jurisdiction of the Court was properly invoked

Holding

Jurisdiction was not properly invoked; the petition raises purely civil disputes about land subdivision and ownership which should be pursued in a civil suit, so the doctrine of constitutional avoidance applies.

Reasoning

The Court noted the central dispute was whether LR No. 8700 was subdivided into three parcels (one being 8700/2) or into seventy-five parcels. Applying Anarita Karimi Njeru and authorities on constitutional avoidance, it held the issues were civil in nature, remedies existed in ordinary civil law, and the constitutional route was improper. It therefore declined jurisdiction on the constitutional petition.

p. 11
02

Whether the Petitioners are entitled to the orders sought

Holding

No; the prayers cannot be granted given the finding on jurisdiction.

Reasoning

Because the Court found the petition improperly invoked constitutional jurisdiction, the declaratory, prohibitory and mandamus orders sought could not issue. The claim concerning discharge of charge, transfer and title over LR No. 8700/2 must be pursued in a civil suit if at all.

p. 11
03

Who should bear the costs of the amended petition

Holding

Costs to the 1st, 3rd and 4th Respondents, as costs follow the event.

Reasoning

Applying Section 27 of the Civil Procedure Act, the Court held the successful party should ordinarily be awarded costs and found no reason to depart from that position since the Respondents succeeded in having the petition struck out.

p. 11

Legal principles established

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  • Where a dispute is essentially civil in nature and can be resolved in an ordinary civil suit, a constitutional court should decline jurisdiction under the doctrine of constitutional avoidance.
  • Costs follow the event under Section 27 of the Civil Procedure Act; the successful party ordinarily gets costs.

Court orders

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  1. 1.The Amended Petition is struck out with costs to the 1st, 3rd and 4th Respondents.

Authorities

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Legislation

  • Constitution of KenyaArticles 21(1), 27, 40(1), 40(3), 60(1), 64
  • Land Adjudication ActSections 26, 28, 29, 30
  • Evidence ActSections 107, 108 & 109
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (17)

  • Mbita Ntiro v Mbae Mwirichia & another
    [2018] eKLR
  • West Kenya Sugar Company Ltd v Busia Sugar Industries Ltd & 2 Others
    [2017] eKLR
  • Mutisya (Suing on his own behalf & as an Administrator of the Estate of Samuel Mutisya Somba) v Land Adjudication Officer, Makueni & 11 Others; Mutisya & another (Interested Parties)
    (Environment & Land Petition 13 of 2020) [2022] KEELC 15501 (KLR) (21 December 2022) (Ruling)
  • Abidha Nicholus v The Attorney General & 7 Others
    [2023] eKLR
  • Kenya Revenue Authority & 2 Others v Daraza Investments Ltd
    [2018] eKLR
  • Anarita Karimi Njeru vs Republic
    [1979] eKLR
  • Manase Guyo & 260 Others vs Kenya Forest Services
    [2016] eKLR
  • KKB v SCM & 5 Others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)
  • Matatu Welfare Association & another v Invesco Assurance Co. Ltd & 3 Others
    [2019] eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
  • Speaker of National assembly v Karume
    [1992] KLR 21
  • Republic vs Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No. 234 of 1996
  • Rumasila v Kenya Urban Roads Authority & 2 others
    (Environment & Land Petition E006 of 2022) [2024] KEELC 4826 (KLR) (20 June 2024) (Judgment)
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014)
  • Bamaftah & another v Cabinet Secretary, Ministry of Lands, Public Works and Housing and Urban Development & 7 others
    (Environment and Land Constitutional Petition E012 of 2023) [2023] KEELC 21412 (KLR) (7 November 2023) (Ruling)
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
Jurisdiction invoked
Article 40, 27, 21(1), 60(1) and 64 of the Constitution of Kenya (invoked by the Petitioners); jurisdiction declined under the doctrine of constitutional avoidance

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, "Chemurwok & another v Director of Land Adjudication and Settlement & 3 others (Environment & Land Petition E002 of 2021) [2025] KEELC 3089 (KLR)", Case Analysis (2025). Environment and Land Petition dated 26th March, 2021 (amended 27th June, 2023), Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3089/eng@2025-04-03

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