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Court of AppealDismissedCivil Appeal arising from Constitutional Petition No. 19 of 2018 (ELC Narok)· [2025] KECA 113 (KLR)

Musana Ole Pere & 1 other v The District Land Adjudication and Settlement Officer, Narok South & 8 others

Court of Appeal
24 January 2025
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
3,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal dismissed a challenge to the Narok land adjudication because titles had already been issued, making the dispute pointless to decide.

What this practically means

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Executive summary

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The appellants challenged the Naikarra/Osarara land adjudication process in Narok by a constitutional petition filed at the Environment and Land Court, alleging that the survey was undertaken by a private surveyor, that there was no public participation, and that the process lacked transparency. They sought nullification of the survey, declarations of unconstitutionality, an injunction, a public baraza, and disbandment of the Adjudication Committee. The respondents raised a preliminary objection premised on the consent requirement of the Land Adjudication Act. The ELC judge, by ruling delivered on 16th July 2019, upheld the objection and struck out the petition for failure to obtain the consent of the Land Adjudication Officer. On appeal, the appellants argued that Section 30 does not apply to petitions raising constitutional questions, that the Act's dispute mechanisms could not resolve their grievances, and that the preliminary objection failed the established threshold. At the hearing, counsel conceded that the adjudication process had been concluded and titles issued to land owners. The Court of Appeal therefore turned to the doctrine of mootness, applying Supreme Court, Court of Appeal, South African and Canadian authorities. It held that all the reliefs sought had been overtaken by events, that the adjudication order could not be unwound as titles had issued to non-parties, and that courts will not determine matters lacking a live controversy. The appeal was dismissed with no orders as to costs. The Court declined to decide the merits but observed, obiter, that failure to obtain the statutory consent was fatal and could not be cured by filing a constitutional petition.

Key legal issues

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01

Mootness of the appeal

Holding

The appeal was moot because the adjudication process was finalized and titles issued, overtaking all reliefs sought.

Reasoning

The Court applied the doctrine of mootness, drawing on Supreme Court, Court of Appeal, South African, Canadian and Nigerian authorities. It found that all prayers in the petition sought to injunct or nullify an adjudication process that had concluded, with titles issued to persons not before the Court. There was no live controversy, and no court should knowingly determine moot issues presenting no practical effect.

p. 8
02

Effect of failure to obtain consent under the Land Adjudication Act

Holding

Obiter: failure to obtain the statutory consent was fatal and cannot be cured by filing a constitutional petition.

Reasoning

Although the Court declined to determine the merits of the appeal given its mootness, it underscored that the mandatory consent requirement of the Land Adjudication Act applies even where a litigant purports to raise constitutional questions. The obiter observation signals that a constitutional petition cannot be used to bypass an exhaustion-of-remedies provision, though the disposition rested on mootness.

p. 8

Legal principles established

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  • A case is moot when supervening events have eliminated the live controversy, and courts decline jurisdiction over moot matters absent compelling reasons.
  • Mootness is determined by a two-step analysis: whether the concrete dispute has disappeared, and if so, whether the court should nonetheless exercise its discretion to hear the case.
  • The mandatory consent requirement under the Land Adjudication Act cannot be circumvented by clothing a land dispute as a constitutional petition.

Court orders

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  1. 1.The appeal is dismissed with no orders as to costs
On appeal from
Environment and Land Court at Narok
Constitutional Petition No. 19 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Environment and Land Court (no specific constitutional provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Musana Ole Pere & 1 other v The District Land Adjudication and Settlement Officer, Narok South & 8 others", Case Analysis (2025). Civil Appeal arising from Constitutional Petition No. 19 of 2018 (ELC Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/113/eng@2025-01-24

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