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ELCDismissedNot stated in judgment

Sande Baya Thoya & another v Arbitration Board & 3 others; Ali Sunday Chea (Interested Party) [2021] KEELC 400 (KLR)

Environment and Land Court
30 November 2021
2,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The court dismissed a land dispute challenge because the applicants skipped the required appeal to the Minister and lacked consent to go to court.

What this practically means

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Executive summary

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The applicants moved the court by Notice of Motion dated 25th May 2021 seeking leave to institute judicial review proceedings, apparently challenging contradictory and erroneous decisions of a Land Adjudication Arbitration Board delivered on 13th November 2020. Before the hearing, the Interested Party raised a preliminary objection dated 23rd June 2021 contending that the suit was incurably defective for want of jurisdiction, having been instituted in contravention of sections 29 and 30 of the Land Adjudication Act, Cap 284; that the applicants prematurely approached the court without exhausting the appeal to the Minister; that the suit was frivolous and an abuse of process; and that the orders sought were unavailable. Counsel filed written submissions. The applicants invoked Articles 23(3)(d) and 159(2)(d) of the Constitution and the oxygen rule, urging that procedural technicalities should not defeat justice. The Interested Party argued that the statutory appeal mechanism under section 29 had not been exhausted and that section 30 barred any civil proceedings concerning land in an adjudication section before the register became final, absent the adjudication officer's written consent. The court held that jurisdiction must be resolved first, found that no consent had been obtained and that the adjudication process was incomplete, and that the applicants had failed to exhaust the statutory appeal to the Minister. Applying the decision in Republic v District Land Adjudication Officer, Trans-Mara, the court upheld the preliminary objection and dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection on jurisdiction has merit, namely whether the court is barred by sections 29 and 30 of the Land Adjudication Act from entertaining the application for leave to institute judicial review proceedings

Key legal issues

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01

Whether the court has jurisdiction over an application for leave to institute judicial review proceedings concerning land in an active adjudication section

Holding

The court lacks jurisdiction: the applicants did not exhaust the appeal to the Minister under section 29 of the Land Adjudication Act and did not obtain the Land Adjudication Officer's consent required by section 30, and the adjudication process has not been finalized

Reasoning

The Land Adjudication Board delivered its decision on 13th November 2020, and section 29 allows an aggrieved person 60 days to appeal to the Minister, whose order is final. Section 30 bars courts from entertaining civil proceedings concerning land in an adjudication section until the adjudication register becomes final, save with the written consent of the adjudication officer. No consent was proved, and the pleadings and affidavit show the adjudication process is unfinished. The applicants therefore had to exhaust the statutory appeal mechanism or obtain consent before approaching the court.

p. 4
02

Whether procedural lapses in bringing the application by notice of motion rather than ex parte chamber summons render it fatally defective

Holding

No - such a lapse is a curable procedural technicality that causes no prejudice to the respondent, applying Article 159(2)(d) of the Constitution

Reasoning

The court noted that although the applicants moved by notice of motion rather than the prescribed ex parte chamber application, Article 159(2)(d) obliges courts to administer justice without undue regard to procedural technicalities. The import of the application and the prayers sought were clear, the interested parties had responded, and no prejudice would ensue. However, this point was overtaken by the jurisdictional objection, which was dispositive of the matter.

p. 3

Legal principles established

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  • A preliminary objection on jurisdiction must be determined first; a court without jurisdiction need not entertain the matter further
  • Where an Act of Parliament lays down procedures and appeal mechanisms, these must be followed and exhausted before approaching the court
  • Courts do not second-guess compliance with statutory processes but rely on the pleadings and evidence before them; it is either there is a consent or not

Court orders

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  1. 1.The preliminary objection dated 23rd June 2021 is upheld
  2. 2.The Notice of Motion dated 25th May 2021 seeking leave to institute judicial review proceedings is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and section 9 of the Law Reform Act; matter arising from land adjudication process under the Land Adjudication Act, Cap 284

Relief refused

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Leave to institute judicial review proceedings

The applicants failed to exhaust the appeal mechanism to the Minister under section 29 of the Land Adjudication Act and did not obtain the consent of the Land Adjudication Officer required under section 30, so the court lacks jurisdiction

p. 4

Costs

The application is dismissed with costs to the Interested Party

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

When a preliminary objection is raised on the court’s jurisdiction to hear and determine a matter, the same has to be dealt with first as if it is upheld then the courts need not move further to determine an application or hear a case.
p. 3Priority of jurisdictional preliminary objections
When there are laid down procedures in an Act of parliament then the same have to be followed and exhausted before approaching the court.
p. 4Exhaustion of statutory remedies
I therefore find that the preliminary objection has merit and is therefore upheld. The upshot is that the application is dismissed with costs.
p. 4Final orders - disposition

Issues in the judgment

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minor

The judgment does not state the court or case number of the proceedings; the station (Malindi) appears only in the delivery clause and the court is inferred from the subject matter and the presiding judge

minor

The judgment refers to 'section 9 (2) of the Law Reform Act' in the interested party's submissions but the prescribed six-month period for certiorari arises under Order 53 rule 2 and section 9(2) as discussed in the Raila Odinga citation; the limitation argument was superseded by the jurisdictional ruling

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, "Sande Baya Thoya & another v Arbitration Board & 3 others; Ali Sunday Chea (Interested Party) [2021] KEELC 400 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/400/eng@2021-11-30

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