James Muthiane M’mbirithu v Land Adjudication and Settlement Officer Igembe Central/North Sub-Counties & 3 others; James Kirema Baikenda (Interested Party) [2022] KEELC 829 (KLR)
The bottom line
#A Kenyan court cancelled a land adjudication decision because officials failed to follow fair procedure, but refused to declare the petitioner the outright owner.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the petitioner has met the threshold of a constitutional petition.
- 2.If the petitioner has pleaded and proved any breach of his constitutional rights and freedoms by the respondents.
- 3.If the petitioner was justified in bringing a petition without exhausting any review or appeal mechanism as provided under the enabling law to the subject matter.
- 4.If the petitioner is entitled to the prayers sought.
- 5.What is the order as to costs.
Key legal issues
#Threshold of a constitutional petition
The petitioner satisfied the Anarita Karimi Njeru threshold by specifying with precision the rights infringed and the injury suffered.
Guided by the Supreme Court in Shollei v JSC and the pleaded particulars, the court found the petitioner had particularised the violation of Articles 35, 40, 47, 48, 50, 60, 68, 64 and 159 and demonstrated the injury from the withholding of the decision and proceedings, defeating the objection based on want of specificity.
Exhaustion of internal remedies and limitation
The respondents' failure to supply the decision and proceedings within the statutory 30 days estopped them from invoking the 6-month limitation for judicial review.
Section 6(3) of the Fair Administrative Actions Act requires the supply of reasons and documents within 30 days of request; failure presumes the action was taken without good reason. The delay of under 3 years was thus sufficiently explained, and the petition, not judicial review, was a permissible route for alleged rights violations.
Fair administrative action in the A/R objection proceedings
The decision-making process fell short of Section 4(4) of the Fair Administrative Action Act, warranting quashing and remittal.
There was no evidence the committee members signed the decision, unclear whether parties participated in the scene visit or whether the committee's views were factored into the final decision, and the prior decisions on which the A/R decision was based were not availed to the court.
Alleged fraud and collusion
The claim of fraud and collusion failed for want of pleading and proof to the required standard.
Fraud must be specifically pleaded and proved; the petitioner made bare allegations without concrete evidence and made no report to investigative agencies or the ombudsman under the Commission on Administrative Justice Act.
Legal principles established
#- Where an administrative organ withholds a decision and proceedings contrary to Section 6(3) of the Fair Administrative Action Act, it is estopped from relying on limitation and the decision is presumed to have been taken without good reason.
- A party alleging breach of constitutional rights may elect a constitutional petition instead of judicial review, and no limitation of time applies to such a petition.
Court orders
#- 1.The proceedings and the eventual decision made by the 1st respondent in A/R Objection No. 741 are brought before this court and quashed by way of certiorari.
- 2.The A/R objection is remitted for re-consideration by the respondents in line with Section 11 of the Fair Administrative Action Act.
- 3.The rest of the prayers to the petition are found unmerited and are refused.
- 4.Each party to bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution as read with Section 13(3) of the Environment and Land Court Act 2011
Relief refused
#Declaration that the land belongs to the petitioner
The court granted only the quashing and remittal; the declaration of ownership was among the remaining prayers found unmerited.
Mandamus compelling the chief land registrar to register the petitioner as proprietor
Refused as part of the remaining prayers found unmerited.
General damages for breach of constitutional rights
Refused as part of the remaining prayers found unmerited.
Ground of fraud and/or collusion
Bare allegations of fraud with no concrete evidence; no report made to investigative agencies including the ombudsman.
Costs
Each party to bear their own costs given this is a constitutional petition.
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.
In view of the foregoing reasons, my conclusion is the petition has merits, the proceedings and the eventual decision made by the 1 st respondent is hereby brought before this court and quashed.
The A/R objection is remitted for re-consideration by the respondents in line with Section 11 of Fair Administrative Action Act.
The rest of the prayers to the petition are found unmerited.
Each party to bear their own costs given this is a constitutional petition.
By denying the petitioner his constitutional right under Article 47 and Sections 5, 6(3) of Fair Administrative Action Act, the respondents are estopped from alleging that he did not file the judicial review against the decision within 6 months.
Issues in the judgment
#Inconsistent rendition of the cited Supreme Court case name 'Mumo Matemu v Trusted Society of Human Rights Alliance' appears in the judgment as 'Trusted Society of Juman Rights Alliance', and the cited statute is rendered both 'Fair Administrative Act' and 'Fair Adminstrative Action Act' (a typographical error).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muthiane M’mbirithu v Land Adjudication and Settlement Officer Igembe Central/North Sub-Counties & 3 others; James Kirema Baikenda (Interested Party) [2022] KEELC 829 (KLR)", Case Analysis (2022). Petition dated 12th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/829/eng@2022-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.