Narikiso Oyugi Akech v Elijah Onyango(Sued as the Administrator of Joash Onyango Achieng – (Deceased) [2018] KEELC 96 (KLR)
The bottom line
#A landowner who lost a land adjudication appeal lost again in court because she bypassed the required legal procedures for challenging the Minister's decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit falls within the jurisdiction of this court
- 2.Whether the suit is time barred
- 3.Whether the suit is incompetent, lacks cause of action and is an abuse of the court process
Key legal issues
#Whether the court had jurisdiction over the suit given the statutory adjudication and appeal machinery under the Land Adjudication Act
The dispute fell within the court's jurisdiction under Article 162(2)(b), but the plaintiff's grievance had already been determined by the Minister and the plaintiff neither appealed under Section 30(3) nor sought judicial review, so the suit bypassed the statutory procedure.
The court noted that the adjudication officer and the Minister are quasi-judicial and administrative bodies mandated by statute for dispute resolution. The Minister's decision of 2004 was final under Section 30(3) of the Land Adjudication Act. The plaintiff did not file judicial review within time, and the court could find no law appointing the process the plaintiff followed. Relying on the Karume principle, the prescribed procedure had to be strictly followed.
Whether the suit was incompetent, frivolous, vexatious and an abuse of the court process
The suit was held to be incompetent and an abuse of the court process, and the preliminary objection was upheld.
The defendant's objection was raised on pure points of law requiring no ascertainment of facts. Borrowing from the cited authorities on abuse of process, including Muchanga Investments Ltd v Safaris Unlimited, the court found the suit wanting in bona fides, filed as an afterthought some ten years after the Minister's decision, with no legal basis for the process adopted by the plaintiff.
Legal principles established
#- Where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A proceeding is an abuse of judicial process when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice
Court orders
#- 1.The preliminary objection dated 26th May, 2017 is upheld
- 2.The plaintiff's suit filed by way of plaint dated 22nd August 2014 is dismissed with costs to the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and Section 13(1) of the Environment and Land Court Act
Relief refused
#Permanent injunction against the defendant in respect of land parcel Kanyada/Kanyadier/783
The suit was dismissed as the plaintiff had failed to follow the statutory procedure for redress after the Minister's appeal decision, making the suit incompetent and an abuse of court process
Costs of the suit against the defendant
Costs were instead awarded to the defendant upon dismissal of the suit
Costs
Suit dismissed with costs to the defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where there is clear procedure for the redness of any particular grievance prescribed by the Constitution or an Act of Parliament, the procedure should be strictly followed….
I am of the considered view that the suit is incompetent and an abuse of the court process.
The net result is that the plaintiff’s suit filed by way of plaint dated 22 nd August 2014 is hereby dismissed with costs to the defendant.
Issues in the judgment
#The names of the parties are not fully captured in the judgment header; the plaintiff's name appears only in the adjudication officer's quoted decision and the defendant is referred to only as 'the defendant' throughout
The suit/case number of this matter is not stated anywhere in the judgment
Inconsistent reference to the Environment and Land Court Act year - the judgment cites 'Environment and Land Court, 2015 (2011)'
The judgment refers to '7 of the Limitation of Actions Act' cited by the plaintiff but does not analyse the limitation issue in the determination despite framing it as an issue
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Narikiso Oyugi Akech v Elijah Onyango(Sued as the Administrator of Joash Onyango Achieng – (Deceased) [2018] KEELC 96 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/96/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.