[2021] KEELC 942 (KLR)
The court found that the subject land is under adjudication and governed by the Land Adjudication Act, not the Land Registration Act. The applicant had not demonstrated that he had exhausted the statutory dispute resolution mechanisms available under the Land Adjudication Act, nor had he shown exceptional...
Source-derived case information.
- Citation
- [2021] KEELC 942 (KLR)
- Parties
- Applicant: Michael Mugambi Muruka; Respondent: The Land Registrar Tigania East District; Respondent: The Adjudication Officer, Karama Adjudication Section; Respondent: The Honourable Attorney General; Respondent: Jospeh M’Imunyua Muruka; Respondent: Peter Milionea; Respondent: Gervasio Kakambi Thitura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? E005 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Inhibition and Injunction
- Outcome
- application dismissed with costs to respondents and interested parties
- Legal Topics
- Land Adjudication, Inhibition Orders, Temporary Injunctions, Alternative Dispute Resolution, Fair Administrative Action, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mugambi Muruka
Applicant
The Land Registrar Tigania East District
Respondent
The Adjudication Officer, Karama Adjudication Section
Respondent
The Honourable Attorney General
Respondent
Jospeh M’Imunyua Muruka
Respondent
Peter Milionea
Respondent
Gervasio Kakambi Thitura
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Inhibition and Injunction
Legal Issues
- 1 Whether the court has jurisdiction to grant inhibition orders over land under adjudication governed by the Land Adjudication Act.
- 2 Whether the applicant is entitled to a temporary injunction over the suit land pending determination of the petition.
- 3 Whether the applicant was required to exhaust alternative dispute resolution mechanisms under the Land Adjudication Act before approaching the court.
Ratio Decidendi
The court found that the subject land is under adjudication and governed by the Land Adjudication Act, not the Land Registration Act. The applicant had not demonstrated that he had exhausted the statutory dispute resolution mechanisms available under the Land Adjudication Act, nor had he shown exceptional circumstances to exempt him from doing so. Consequently, the court held that it would be premature to grant inhibition or injunction orders, as the applicant had not invoked or completed the alternative dispute resolution procedures mandated by law. The application was therefore dismissed for lack of merit, with costs awarded to the respondents and interested parties.
Court Disposition
application dismissed with costs to respondents and interested parties
Orders
- The application dated 29.10.2020 is dismissed.
- Costs awarded to the respondents and interested parties.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PETITION NO. E005 OF 2020
IN THE MATTER OF BREACH OF THE CONSTITUTION AND ESPECIALLY ARTICLES 1 (1)B, 1 (4) (B), 2, 3, 6, 10, 12, 19, 20, 21, 22, 23, 24, 27, 28, 40, 47, 48, 50, 60, 61, 64, 66, 68, 73, 75, 77, 174, 175, 185 AND 197 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF SECTION 24, 25 AND 78, 79 OF THE LAND REGISTRATION ACT
AND
IN THE MATTER OF ARTICLES 2, 3, 4, 7, 13 AND 19 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS AND OTHER PROVISIONS THEREOF
AND
IN THE MATTER OF THE LAND REGISTRATION ACT AND THE LAND ACT
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULE 2013, SECTION 4
BETWEEN
MICHAEL MUGAMBI MURUKA .........................................................................................PETITIONER
VERSUS
THE LAND REGISTRAR TIGANIA EAST DISTRICT...............................................1ST RESPONDENT
THE ADJUDICATION OFFICER, KARAMA ADJUDICATION SECTION............2ND RESPONDNET
THE HONOURABLE ATTORNEY GENERAL............................................................3RD RESPONDENT
AND
JOSPEH M’IMUNYUA MURUKA......................................................................1ST INTERESTED PARTY
PETER MILIONEA ..............................................................................................2ND INTERESTED PARTY
GERVASIO KAKAMBI THITURA.....................................................................3RD INTERESTED APRTY
RULING
1. Before the court is an application dated 29. 10. 2020 seeking for inhibition orders and a temporary injunction over Parcels No. 4787 Karama Adjudication Section.
2. The application is supported by an affidavit sworn on 29. 10. 2020 based on the grounds that a consent to sue dated 18. 8.2020 was issued by the second respondent confirming the suit land is undergoing adjudication.
3. The application is opposed by the interested parties on the grounds that an objection was lodged and dismissed; that there are three parcels of land namely 557, 5181 and 2763 Karama Adjudication section to which the petitioner trespassing into and making illegal developments to the detriment of the interested parties.
4. Section 68 of the Land Registration Act empowers a court to grant inhibition orders over registered lands. In the instant case, it is clear the subject land is governed by the Land Adjudication and Consolidation Act Cap 283 and 284 Laws of Kenya respectively. The consent issued to sue is given by the 2nd respondent or their officer and has clearly indicated subject land is within their jurisdiction and not the 1st respondent.
5. The replying affidavit by the 3rd interested party annexture marked GKT 1 & 2 states the Adjudication Process is at A/R stage. There is a laid down procedure under the Land Adjudication Act on which any aggrieved party must follow so as to have the complaint determined. The applicant has not disclosed whether he invoked those procedures before coming to court.
6. In the premises, it is my considered view it would be premature for this court to issue inhibition orders on a law which does not govern the subject land. The prayers are rejected.
7. Regarding prayers for temporary injunction, the applicant has to establish a prima facie case with a probability of success and that he stands to suffer irreparable damage if the orders are not granted and lastly that the balance of convenience tilts in his favour.
8. Given my finding above that there are laid down procedures for alternative dispute mechanisms under the Land Adjudication Act, Article 159 of the Constitution mandates this court to respect and encourage such mechanisms. It would therefore be premature for this court to encourage the applicant to ignore such laid down procedures as provided for under Section 9 (3) of the Fair Administrative Actions Act 2015. The court can only do so if there are exceptional circumstances.
9. In the instant application, no exceptional circumstances have been demonstrated to exempt the applicant from the provisions of appeal set out under the Land Adjudication Act. The application lacks merit and is hereby dismissed with costs to the respondents and interested parties.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17TH DAY OF NOVEMBER, 2021
In presence of:
ANAMPIU FOR INTERESTED PARTY
KIMATHI FOR RESPONDENT
MISS GITONGA FOR APPLICANT
COURT ASSISTANT - KANANU
HON. C.K. NZILI
ELC JUDGE