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ELCAllowedNot stated in the judgment· [2025] KEELC 5172 (KLR)

Jillo & 2 others v Duba (Environment and Land Appeal E010 of 2024) [2025] KEELC 5172 (KLR)

Environment and Land Court
7 July 2025
5,036 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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Kenya's Environment and Land Court struck out a land suit filed without the required adjudication officer's consent, voiding the lower court's judgment entirely.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Isiolo against a judgment of the subordinate court delivered on 30th April 2024, in which the trial court had allowed the Respondent's (plaintiff's) claim to seven acres comprising parcels B6 and B6A Kisima Area (Kambi Garba/Chechelezi) and granted declaratory relief, a permanent injunction, and costs. The Appellants (defendants) advanced two principal grounds: that the subordinate court lacked jurisdiction because the suit plots fell within the Ngare Mara/Gambera Adjudication Section, and that the trial court had failed to properly evaluate the evidence, including the County Physical Planner's and District Surveyor's reports and the alleged incapacity of the Respondent, who was said to have been a minor of about 15 years at the time of the 1991 allotment. The court framed a single determinant issue: whether the trial court was seized of jurisdiction and, if not, whether the proceedings and decree were a nullity ab initio. Relying on section 30(1) of the Land Adjudication Act and Court of Appeal authority including Bhaijee v Nondi and Phoenix of E.A. Assurance v Thiga, the court found that the suit land was within an adjudication section still at demarcation and survey stage, that no adjudication officer's consent had been obtained, and that the suit was premature, incompetent and dead before filing. The court rejected the Respondent's submission that the adjudication issue was raised belatedly, holding it was live before the trial court through documents tendered by both parties and the Respondent's own testimony. Allowing the appeal, the court set aside the judgment and decree, struck out the suit, directed each party to bear its own costs both here and below, and clarified that any dispute over the property must be resolved under the Land Adjudication Act.

Key legal issues

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01

Whether the subordinate court had jurisdiction over land within an adjudication section absent the adjudication officer's consent

Holding

The trial court was divested of jurisdiction by section 30(1) of the Land Adjudication Act; the suit was premature, incompetent and a nullity, and the judgment and decree were set aside with the suit struck out

Reasoning

The suit plots fell within the Ngare Mara/Gambera Adjudication Section, which was at demarcation and survey stage and had not attained finality under section 29(3). Section 30(1) of the Land Adjudication Act is peremptory: absent the adjudication officer's written consent, no court may entertain civil proceedings concerning land in an adjudication section. Neither exception (completed adjudication or consent) applied. The jurisdictional issue was live before the trial court, having been raised through documents tendered by both parties, and the court was obliged to address it. Proceedings without jurisdiction are a nullity ab initio.

p. 9
02

Whether the adjudication/jurisdiction issue could be entertained on appeal when allegedly not canvassed before the trial court

Holding

The issue was live before the trial court; it arose from the pleadings, the documentary evidence tendered by both parties, and the respondent's own testimony

Reasoning

The court held that the question of jurisdiction may be discerned from the pleadings or from the totality of the evidence, and may even be raised by the court itself. Both the appellants' supplementary documents (D8-D11) and the respondent's exhibits, plus her cross-examination admission, established that the land was under adjudication. The trial court was therefore obligated to address the issue notwithstanding that no preliminary objection had formally framed it.

p. 9

Legal principles established

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  • Except with the written consent of the adjudication officer, no court may entertain civil proceedings concerning an interest in land in an adjudication section until the adjudication register has become final under section 29(3) of the Land Adjudication Act
  • Proceedings entertained without jurisdiction, and consequential orders, are a nullity ab initio
  • A first appellate court has jurisdiction to review, re-evaluate and re-analyse the findings of the court of first instance and arrive at independent conclusions

Court orders

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  1. 1.The appeal be and is hereby allowed
  2. 2.The Judgment and consequential decree issued on 30th April 2024 be and is hereby set aside
  3. 3.An order be and is hereby made striking out the suit that was filed in the subordinate court
  4. 4.Each party shall bear its own costs of the appeal
  5. 5.The parties shall also bear own costs of the proceedings before the subordinate court
  6. 6.The dispute touching on suit property (if any) can only be dealt with in accordance with the Land Adjudication Act, Chapter 284, Laws of Kenya

Authorities

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Legislation

  • Land Adjudication ActSection 30 (including 30(1))
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 5
  • Civil Procedure ActSection 78

Cases cited (15)

  • Stanley Gitonga v Gerald Mwithia
    [2013] KECA 429 (KLR)
  • Bhaijee & another v Nondi & another (Civil Appeal 139 of 2019)
    [2022] KECA 119 (KLR) (18 February 2022)
  • Galehu v Komba (Environment and Land Appeal E003 of 2021)
    [2023] KEELC 16506 (KLR) (28 February 2023)
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Abok James Odera T/A A.J Odera & Associates versus John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Mwana Sokoni versus Kenya Business Limited
    (1985) KLR 931
  • Sottos Shipping versus Sauviet Sohold
    the Times, March 16, 1983
  • Peters versus Sunday Post Limited
    (1958) EA 424
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Kenya Ports Authority vs Modern Holding [EA] Limited
    2018 eKLR
  • Benjamin Okwaro Estika v Christopher Antony Ouko & another
    [2013] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service (Civil Appeal 244 of 2010)
    [2019] KECA 767 (KLR) (10 May 2019)
  • Odd Jobs vs. Mubia
    (1974) EA 476
  • Nairobi City Council V Thabiti Enterprises Limited
    [1997] eKLR
  • Galaxy Paints Company Ltd V Falcon Guards Ltd
    [2000] eKLR
On appeal from
Subordinate Court (Isiolo)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act, Chapter 21, Laws of Kenya

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, "Jillo & 2 others v Duba (Environment and Land Appeal E010 of 2024) [2025] KEELC 5172 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5172/eng@2025-07-07

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