Automated Summary
Key Facts
Petitioners (Joseph S Tootio and 12 others) filed a constitutional application challenging the adjudication process in Naikarra Section, alleging violations of Articles 10, 19, 20, 23, 35, 40, 48, 50, 60, and 232 of the Kenyan Constitution. Respondents (4th-25th) objected on jurisdictional grounds under Section 30(1) of the Land Adjudication Act, arguing the court lacks authority until the adjudication register becomes final. The court upheld the preliminary objection, finding the application premature and vacating prior orders dated 23/5/2019. The ruling was delivered on 13 July 2021 in Narok ELC.
Issues
The court was asked to determine if it has jurisdiction to entertain the petition under the Land Adjudication Act before the adjudication register for Naikarra Section is finalized. The respondents argued that Section 30(1) of the Act bars the court from entertaining such proceedings until the register becomes final, while the petitioners contended that this is a constitutional matter and thus not subject to the Act's jurisdictional requirements. The court upheld the preliminary objection, finding the petition premature as it did not exhaust available remedies under the Land Adjudication Act.
Holdings
The court found that the Notice of Motion dated 2/5/2019 was premature and that the petitioners had not exhausted all available remedies under the Land Adjudication Act. The Notice of Preliminary Objection dated 16/7/2019 was upheld, and the Orders granted on 23/5/2019 were vacated with no orders as to costs.
Remedies
- The orders granted on 23/5/2019 were vacated by the court. The court upheld the Notice of Preliminary Objection dated 16/7/2019, deeming the Notice of Motion dated 2/5/2019 premature and lacking exhaustion of available remedies under the Land Adjudication Act.
- The court issued no orders as to costs following the vacating of the 23/5/2019 orders. This was explicitly stated in the final determination of the ruling.
Legal Principles
- The court emphasized that civil proceedings concerning land interests in an adjudication section cannot be instituted until the adjudication register is final under Section 30(1) of the Land Adjudication Act, requiring exhaustion of administrative remedies.
- The court applied judicial review to assess whether it had jurisdiction to entertain the constitutional petition before the adjudication register became final under the Land Adjudication Act.
Precedent Name
- Attorney General Versus Isaiah Muturi Mucee
- Mukisa Biscuit versus West End Distributors
- Owners of the Motor Vessel 'Lillian S' Caltex Oil Kenya Limited
- Lemitei Ole Koros & Another versus Attorney General & 3 others
Cited Statute
- Constitution of Kenya
- Land Adjudication Act
Judge Name
Mohamed N. Kullow
Passage Text
- Section 30 (1) of the Act provides: Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.
- Based on the foregoing, I find that the Notice of Motion dated 2/5/2019 premature and devoid of exhaustion of all the available remedies provided in the Land Adjudication Act. As such the Notice of Preliminary Objection dated 16/7/2019 is upheld and the Orders granted on 23/5/2019 are hereby vacated with no Orders as to costs.
- The definition of a preliminary objection was well set out in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 in which the court stated, 'So far as I'm aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit'.