https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1009

'Mwamba v Kanampiu & 5 others (Civil Appeal 95 of 2020) [2026] KECA 1009 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1009 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 95 of 2020 S ole Kantai, JW Lessit & A Ali-Aroni, JJA May 29, 2026 Between Seraphin Ndagara M'Mwamba Appellant and David N Kanampiu 1st Respondent District Land Adjudication & Settlement Officer Meru South 2nd Respondent Director of Land Adjudication 3rd Respondent Land Registrar, Meru South 4th Respondent Chief Land Registrar 5th Respondent The Honourable Attorney General 6th Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Chuka (Njoroge, J.) delivered on 5th May, 2020 in Constitutional Petition No. 3 of 2019) Judgment 1.The appellant filed a petition dated 21st May 2019, seeking a declaration that his rights under Articles 27(1) & (2), 40(1) and 47(1) & (2) of the Constitution were violated by the actions of the respondents; a declaration that the excision and registration of Parcel No. Kathwana/1215 from Parcel No. Kathwana/361 in favour of the 1st respondent, prior to the determination of the appeal to the Minister, is illegal and unprocedural; an order directing the 4th and 5th respondents to immediately cancel the registration of land Parcel No. Kathwana/1215 in the name of the 1st respondent and revert the portion thereof to land Parcel No. Kathwana/361, and for the costs of the suit to be borne by the 1st respondent. 2.The petition was predicated on grounds that the 1st respondent lodged objection number 29 against the appellant's claim of a portion of Parcel No. 361, Kathwana Adjudication Section, which was in the name of the appellant. The objection was heard before the Land Adjudication and Settlement Officer, Kathwana Adjudication Section, and a decision was rendered on 8th April 2005 in favour of the 1st respondent, directing that a portion be excised from land Parcel No. 361 and awarded to the 1st respondent. 3.Dissatisfied with the decision, the appellant lodged an appeal to the Minister on 20th April 2005, which remains unheard. While the appeal to the Minister was pending, the respondents executed the decision of the Land Adjudication and Settlement Officer, resulting in a portion measuring 7.34 Ha (18.14 acres) being excised from land Parcel No. 361 and registered as L.R. No. Kathwana/1215 on 4th July 2011, in favour of the 1st respondent. Subsequently, a title deed was issued to the 1st respondent on 21st January 2013. At the time the petition was filed, the appeal to the Minister was still pending. 4.The record shows that the appellant also initiated proceedings in Chuka CMCC No. 13 of 2014, against the 1st respondent based on the legal doctrine of trust, which suit was dismissed. 5.In response, the 1st respondent, David N. Kanampiu, filed a reply to the petition dated 1st July 2019, asserting that the petition did not raise any constitutional issues; all parties had been heard before the Land Adjudication Officer; a decision was made; and further, there is no provision for an appeal to the Minister under the Land Consolidation Act. 6.The 1st respondent further averred that after losing before the Land Adjudication Officer, the appellant filed a Case No. 13 of 2014 before the Chuka Chief Magistrate’s Court, which was dismissed after a full hearing. The 1st respondent contended that it was clear that the appellant had been given a hearing by all relevant organs at both the adjudication stage and in court, but lost, and the loss of a case cannot be deemed to cause a violation of one’s constitutional rights. The petition was an abuse of the court process and a waste of judicial resources. 7.In a judgment delivered on 5th May 2020, the petition was dismissed. The court found that in the proceedings before the Chief Magistrate’s Court, Chuka CMCC No. 13 of 2014, on 18th April 2018, the appellant had provided oral evidence and was cross–examined. The court concluded that the appellant had fully participated in the proceedings. The court also noted a failure to file an appeal against the decision in Chuka and found that filing the constitutional petition amounted to forum shopping. 8.Ultimately, the court determined that the respondent was the registered owner of the suit property and found that the appellant's constitutional rights had not been violated by the registration of the 1st respondent as the owner of the suit property. The court ruled that the necessary adjudication and legal processes had been properly followed. The petition was dismissed with costs. 9.Aggrieved by the judgment, the appellant has lodged the instant appeal raising 11 grounds of appeal for consideration in the memorandum of appeal dated 16th July 2020. We find the grounds raised to be repetitive and have summarized the same as follows: the learned Judge erred in law and fact: by issuing a judgment that did not adhere to the requirements of Order 21 rule 4 of the Civil Procedure Rules, 2010; failing to recognize that the cause of action in Chuka CMCC No. 13 of 2014 was based on the doctrine of trust, while the petition before the court concerned the infringement of constitutional rights; failing to acknowledge that appeal to the Minister under the Land Adjudication Act was full of bureaucracy and left a party with no influence over the prosecution of their appeal; determining that the registration of the suit property in the name of the 1st respondent was conducted in accordance with the law; neglecting to specifically address the legality of a title deed issued for a parcel of land before the appeal to the Minister was resolved; failing to recognize that the petition was unopposed by the 2nd, 3rd, 4th, 5th, and 6th respondents, whose officers violated the appellant's constitutional rights, and failing to treat the appellant's claim as unchallenged, ignoring the appellant's submissions. 10.Counsel for the appellant filed submissions dated 2nd May 2025. Regarding the inadequacy of the judgment, counsel submitted that although the judgment spans 10 pages, it lacked the necessary elements of a valid judgment. This deficiency led the trial court to overlook several issues raised in the petition. He submitted further that the core issue in the dispute was the issuance of a title deed to the 1st respondent during the pendency of the appeal to the Minister, an action carried out by the 2nd to 6th respondents. In support, counsel relied on Chandaria vs. Njeri [1982] KLR, where the court stated that failure to address issues raised renders a judgment unsatisfactory and amounts to a mistrial. 11.Counsel further submitted that the learned Judge did not make a finding that the petition was res judicata, but that the suit in the subordinate court was premised on the doctrine of trust rather than on constitutional violations arising from the unlawful registration of land. Furthermore, the appellant could not be expected to wait for the Minister's decision, given that the title deed had been improperly issued to the 1st respondent, removing the subject matter from the Minister's jurisdiction. Counsel contended that the 2nd to 6th respondents were not parties in either the Chief Magistrate's Court or the appeal to the Minister. Thus, he argued that there remains a pathway for the appellant to seek redress for the respondents' illegal actions through constitutional provisions. 12.On whether the registration of the suit property was done in accordance with the law, counsel argued that once an appeal to the Minister is filed, no registration of the affected property can take place until the appeal is resolved, as stipulated in section 28 of the Land Adjudication Act. In support, counsel cited Euton Njuki Makungo vs. Republic & 2 Others [Nyeri C.O.A. C.A No. 35 of 2013] eKLR, where the court determined that it is not the responsibility of the Registrar of Lands to resolve adjudication disputes. In that case, the court concluded that the property in question was still undergoing adjudication, rendering the Registrar's actions null and void. 13.On whether the court considered the authorities relied on by the appellant, counsel submits that the learned Judge did not adequately review the binding judicial authorities included in the appellant's submissions. He emphasises that had the learned Judge considered and analysed all pertinent issues in the petition as required, he would have reached the correct decision. 14.Counsel for the 1st respondent filed submissions dated 3rd April 2024. He asserted that the petition does not demonstrate any violations of constitutional rights by any respondent. He points out that all parties involved were heard by the Adjudication Officer, who made a decision. The appellant, dissatisfied with the decision, wrongly appealed to the Minister, yet the Land Consolidation Act does not provide for such an appeal. 15.Counsel argued that the appellant’s case, CMCC No. 13 of 2014, in Chuka, was a "fallback position" to the appeal to the Minister. Nonetheless, parties were heard, and the case was dismissed. Counsel also asserted that the current appeal is another bid to "forum shop" and should be discouraged, since, upon losing the case, no appeal was preferred; instead, a constitutional petition was instituted. 16.This being a first appeal, it is our duty, in addition to considering submissions by the appellants and the respondents, to analyse, examine and re-assess the evidence on record afresh and reach our own independent conclusions in the matter. This approach was adopted in Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR, where the court cited the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 and held as follows; -“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 17.We have considered the record, the submissions by the parties and case law cited, and discern that the issues for consideration before us are: whether the matter before the court raised any constitutional issues? Whether the court overlooked issues raised due to the manner and style adopted by the Judge in crafting the judgment. 18.In support of the petition, whose judgement is the subject of this appeal, the appellant stated that the 1st respondent had raised an objection against her, claiming land Parcel No. 361 Kathwana Adjudication Section, which was originally in her name; the objection was heard and a decision made in favour of the 1st respondent and a portion of her land was to be excised in favour of the 1st respondent. She was dissatisfied with the decision and appealed to the Minister, whose appeal was yet to be heard; and pending the said appeal, 18.14 acres of her land were excised and registered in the name of the 1st respondent. 19.It is not in dispute that there is an appeal pending with the Minister since 2005 and a suit filed in 2014, was determined against her. The appellant’s bone of contention is that the suit property was registered before the appeal was heard, thereby removing the matter from the Minister's jurisdiction. It was contended that the action of the respondents necessitated the appellant to seek an avenue to redress the alleged illegalities by invoking constitutional provisions. 20.In its determination the High Court took note that the dispute between the parties was heard and determined as an objection by an Adjudication Officer under the Land Consolidation Act, Chapter 283 of the Laws of Kenya, and after the determination, a title deed was issued. The court also took into account that though the appellant appealed to the Minister in 2005, she also filed suit CMCC No. 13 of 2014 on the same subject matter, raising a complaint regarding the registered title, and that the suit was dismissed. 21.The Land Consolidation Act stipulates as follows: 18.Procedure with regard to objections1.The executive officer, with whom an objection is lodged in accordance with the provisions of section 17 of this Act, shall either—a.refer the objection to the Committee, if it appears to him that the inaccuracy or incompleteness alleged is a consequence of any decision of the Committee; orb.submit the objection to the Adjudication Officer, if it appears to the executive officer that the inaccuracy or incompleteness alleged is a consequence of any decision of an Arbitration Board. 2.Any objection referred to a Committee under subsection (1) of this section shall be considered by the Committee and the Committee shall make a finding thereon; every such finding shall be submitted to the Adjudication Officer. 3.The Adjudication Officer, to whom an objection or the finding of a Committee is submitted under subsection (1) or subsection (2) of this section (as the case may be) shall, in the case of an objection so submitted to him, consider the matter with the Arbitration Board and, after making such further inquiries as he may think fit, determine the matter; and shall, in the case of a finding so submitted to him, either—(a)confirm the finding of the Committee; or(b)consider the matter with the Arbitration Board and, after making such further inquiries as he may think fit, determine the matter. 19.Decision of Adjudication Officer to be finalAny confirmation or determination of an Adjudication Officer made under section 18 of this Act shall be final and shall be notified in writing, signed by the Adjudication Officer, to the executive officer of the Committee concerned, who shall make such alteration, if any, as may be required in the Record of Existing Rights to give effect to such confirmation or determination. 20.Record of Existing Rights to be finalAfter the expiry of sixty days from the date mentioned in section 17, or on the date upon which all alterations to the Record of Existing Rights have been made in accordance with section 19, of this Act, whichever is the later, the Record shall be deemed to be a true and complete record of all existing rights and interests in the adjudication section to which the Record relates: Provided that no inaccuracy in, or omission of, any particular shall in any way affect the validity of any lease or license granted under Part VI of the Trust Land Act (Cap. 288). 22.The law stipulates that the decision of the Adjudicating Officer is final and no appeal is envisaged to the Minister. It follows, therefore, that the appellant's claim that she was denied a further hearing before the Minister does not arise. That as it may, the question to ask is whether a party that loses in an administrative cause, such as in the objection that was raised by the 1st respondent, would be amenable to a civil case, such as CMCC No. 13 of 2014, and on losing the same, resort to filing a constitutional cause? The next question that comes to mind is whether the appellant raised any constitutional issues for the court’s consideration. 23.The case for the appellant is that her constitutional right to be heard was infringed. Counsel did not cite with any precision which section of the law was infringed. Indeed, if the appellant was unhappy with the Adjudicating Officer's decision, he may have referred the matter to Judicial Review. On the other hand, if he was aggrieved by the decision in CMCC No. 13 of 2024, he could have appealed to the High Court to have grievances addressed. Courts generally apply the doctrine of "constitutional avoidance" and will allow a constitutional petition only if no other legal remedy is available. In Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR [2014] KESC 53 (KLR), the Supreme Court stated:“The principle of constitutional avoidance entailed that a court could not determine a constitutional issue when such a matter could properly be decided on another basis. The 1st, 2nd & 3rd respondents' claim in the High Court regarding infringement of intellectual property rights was a plain copyright infringement claim, and it was not properly framed before that court as a constitutional issue. That was, therefore, not a proper question within the appellate court's jurisdiction.” 24.The case before the trial court plainly concerned the consolidation and adjudication exercise of the suit property. The issue was the subject of complaints in two forums: the Adjudication Officer and the Chief Magistrate's Court. The Judge rightly found that the case did not raise any constitutional issues. The appellant’s move to different forums on the same issue would be, at the very least, an abuse of court process. We shall be addressing the concerns raised on the judgment and its content later, but for now, we take note that the Judge stated:“I find that the respondent was registered as the owner of the disputed land in accordance with the established law. I do find that no constitutional rights of the appellant were violated by the registration of the respondent as owner of the suit land. The adjudication and other legal processes had been followed.” 25.The above statement by the Judge is a summation of the issue before us, and we could not agree more. The Judge was right in finding that the matter did not raise any constitutional issue for the court to address. 26.Order 21 rule 4 of the Civil Procedure Rules requires that “Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.” Admittedly, there is no single scientific way to write a judgment. Judgment writing is an art varying from one judge to another; even then, a judgment ought to be concise with the structures entailed in Order 21, rule 4. We agree with the appellant on the concerns raised about the judgment only to the extent that the style adopted in the judgment in question is far from being concise; it is a lazy way of writing a judgment, in which the judge copied and pasted the pleadings and submissions, resulting in a verbose judgment. It is unfortunate and must be frowned upon. However, the error in the style adopted in our view is a procedural lapse that did not go to the substance of the judgment and ought not to be a basis for upsetting the judgment. In the last three paragraphs, the judge identified the issue for determination and set out his reasoning. In any event, no miscarriage of justice was occasioned, all the same. 27.In the end, we dismiss the appeal with costs to the 1st respondent. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.S. ole KANTAI.........................................JUDGE OF APPEALJ. LESIIT.........................................JUDGE OF APPEAL ALI-ARONI.........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.