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ELCStruck OutNotice of Motion dated 13.2.2020· [2021] KEELC 77 (KLR)

Samuel Mwangi Kahara v Dlaso, Upper Athiru Gaiti ‘C’ Adjudication Section & another;Elijah Mutuma Johanna (Interested Party) [2021] KEELC 77 (KLR)

Environment and Land Court
1 December 2021
CNC.K. NZILI
685 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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If the Land Adjudication Act gives you a right of appeal, you must use it first — Kenyan courts will strike out cases that skip the step.

What this practically means

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Executive summary

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The ex-parte applicant moved the court by notice of motion dated 13.2.2020 seeking certiorari to quash a decision of 1.5.2019 made by the 2nd respondent allowing Adjudication/Reference objection No. 22 over Parcel No. 365 Igembe Adjudication Area, Upper Athiru Gaiti 'C' Adjudication Section, and prohibition restraining the 2nd respondent from subdividing the parcel or issuing any part of it to the interested party. The applicant contended the decision was ultra vires and made without jurisdiction and without a fair hearing. The interested party opposed, asserting the applicant had purchased part of the land from his father, that the parcel was a combination of two parcels (initially 1890 and 1891, later 364 and 366) with clear boundaries on the ground, and that the application was a fraudulent attempt to take the whole land. The respondents filed no replies. The court held that Section 29 of the Land Adjudication Act gave the applicant a right of appeal to the Minister within 60 days of the decision, and that the applicant gave no reasons for failing to pursue that remedy. Relying on Speaker of the National Assembly -vs- James Njenga Karume and the alternative dispute resolution jurisprudence in Mutanga Tea and Kiroket Ole Punyua, the court found it lacked jurisdiction and struck out the application with costs to the respondents and the interested party.

Key legal issues

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01

Exhaustion of alternative statutory remedies and jurisdiction

Holding

The court lacked jurisdiction to determine the judicial review application because the applicant had not first pursued the statutory appeal to the Minister under Section 29 of the Land Adjudication Act.

Reasoning

The decision of 1.5.2019 gave the applicant a right of appeal to the Minister within 60 days under Section 29. The applicant did not explain why that remedy was not pursued before coming to court. Applying the Karume principle and the courts' encouragement of alternative dispute resolution mechanisms, the court held it lacked jurisdiction and struck out the application.

p. 2

Legal principles established

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  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Any party aggrieved by a determination of an objection under Section 26 of the Land Adjudication Act may appeal to the Minister within 60 days

Court orders

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  1. 1.The notice of motion is struck out with costs to the respondents and the interested party
Jurisdiction invoked
Judicial review jurisdiction of the High Court (certiorari and prohibition) over a land adjudication objection decision; court found it lacked jurisdiction given the appeal procedure under Section 29 of the Land Adjudication Act

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, "Samuel Mwangi Kahara v Dlaso, Upper Athiru Gaiti ‘C’ Adjudication Section & another;Elijah Mutuma Johanna (Interested Party) [2021] KEELC 77 (KLR)", Case Analysis (2021). Notice of Motion dated 13.2.2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/77/eng@2021-12-01

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