Chabari & 3 others (Suing on Public Interest and for their Abothuguchi Clan and Own Interest) v Attorney General & another (Environment & Land Petition E008 of 2022) [2024] KEELC 1097 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered the Minister to decide a land adjudication appeal pending 12 years, within three months.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the constitutional pleading threshold
The petition substantially complied with the Mutunga Rules and the Anarita Karimi Njeru precision requirement.
The court applied Anarita Karimi Njeru and Mumo Matemu on precision in constitutional pleadings, and found the petition had set out the parties, facts relied on, nature of injury, locus, jurisdiction, specific provisions infringed and reliefs sought. The respondents were able to answer without calling for better particulars, showing the issues were known to them. Rule 10 documentation was also attached to the verifying affidavit.
Whether the petitioners were required to await the outcome of the pending Minister's appeal (exhaustion)
The petitioners were properly before the court despite the pending Minister's appeal, given the inordinate unexplained delay of over 12 years.
Relying on Njenga Karume, Mutanga, William Odhiambo Ramogi, Muthinja Kabiru and Fleur Investments, the court recognised the exhaustion doctrine but held exceptions apply. The appeal filed on 7.6.2012 remained unheard, the 2nd respondent did not refute the inordinate delay or state the appeals' status, and no more efficacious alternative was identified. Articles 50(2)(e) and 47 and the legitimate expectation of expeditious determination supported jurisdiction.
Whether the petitioners proved violation of rights to fair hearing and property
The failure to hear the Minister's appeal since 7.6.2012 curtailed the petitioners' rights to fair hearing, access to justice, fair administrative action and property; the inaction was an abuse of discretion.
The court applied Patrick Musimba, Mjomba v County Government of Taita Taveta, Simba v DLASO and Keroche Industries on unexplained delay in Minister's appeals under Section 29 of Cap 284, which must be read with Article 47 and the Fair Administrative Action Act. Section 6(4) of that Act raises a rebuttable presumption against an administrator who fails to give reasons for non-action. The respondents did not refute the delay or explain the appeal's status.
Whether non-joinder of the Minister was fatal and whether consent to sue was required
Non-joinder of the Minister was not fatal since the respondents fall under the supervisory jurisdiction of the court, and no consent was required for a suit questioning adjudication process rather than interests in land.
Relying on Mjomba v County Government of Taita Taveta, Republic v Runkes Musanka ex parte Lesalolwa Lekitio and Domenica Kalotia Kalalu, the court held that a suit questioning adjudication processes is not one on interests in land and so required no consent. Kimwele Kithoka and Republic v DCC Igembe ex parte Kaberia establish that the Minister and officers under Cap 284 fall under the court's supervisory jurisdiction.
Legal principles established
#- Where a Minister's appeal filed under Section 29 of the Land Adjudication Act remains unheard for years without explanation, the delay amounts to an abuse of discretion and justifies mandamus notwithstanding the absence of statutory timelines.
- A suit questioning the processes of adjudication rather than the determination of interests in land requires no consent to file.
- Exhaustion of internal remedies is subject to exceptions where the delay or inaction of the statutory body is unexplained and no more efficacious alternative exists.
Court orders
#- 1.An order of mandamus issued to the Minister through the respondents to hear and determine the Minister's appeal within three months from the date of the judgment
- 2.Costs of the petition awarded to the petitioners
- Jurisdiction invoked
- Article 162(2)(b) and Article 165 of the Constitution as read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chabari & 3 others (Suing on Public Interest and for their Abothuguchi Clan and Own Interest) v Attorney General & another (Environment & Land Petition E008 of 2022) [2024] KEELC 1097 (KLR)", Case Analysis (2024). Meru ELC Petition (as per record; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1097/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.