Twala v Attorney General & another [2022] KEHC 17104 (KLR)

Twala v Attorney General & another (Constitutional Petition E232 of 2021) [2022] KEHC 17104 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17104 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E232 of 2021

AC Mrima, J

December 16, 2022

Between

Patrick Peniki Ole Twala

Petitioner

and

The Hon. Attorney General

1st Respondent

The Cabinet Secretary Ministry Of Lands & Physical Planning

2nd Respondent

Judgment

Introduction: 1. The Petition subject of this judgment sought to interrogate the constitutionality of Section 30 of Land Adjudication Act, Cap. 284 of the Laws of Kenya (hereinafter ‘the impugned section).

2. The contention was premised on the claim that the impugned section it stifles the constitutional right to access justice guaranteed under Article 48 of Constitution.

3. The Petitioner herein, Patrick Peniki Ole Twala, described himself as a Kenyan citizen passionate about advocating for human rights and the rule of law on his own behalf and in public interest.

The Petition: 4. Through the Petition dated 22nd June, 2021, supported by the Petitioner’s Affidavit deposed to on a similar date and a Further Affidavit deposed to on 7th October, 2021, the Petitioner approached this Court seeking to have the impugned section declared unconstitutional.

5. He pleaded that the impugned section violates Article 48 of the Constitution to the extent that it debars, in mandatory terms, any person from instituting, and any Court from entertaining, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section is final under Section 29(3) of the Land Adjudication Act (hereinafter referred to as ‘the Act’).

6. The Petitioner posited that the impugned section limits access to justice by making a prerequisite that in order to approach Court, the consent of an adjudication officer, the very same person in charge of adjudication process, must first be sought.

7. It was the Petitioner’s case that the consideration on whether to grant consent makes the adjudication officer a Judge in his own case, a deviation from the dictates of natural justice.

8. The Petitioner posited further that the unconstitutionality of the impugned section derives from the fact an appeal from the Adjudication officer lies to the Cabinet Secretary whose decision shall be final.

9. The Petitioner averred that the foregoing situation curtailed a party’s right to ventilate their grievance before a Court of law in violation of the constitutional right to access justice as read with the right to fair hearing guaranteed under Articles 48 and 50(1) of Constitution respectively.

10. The Petitioner claimed the impugned section is a claw back on the right to fair trial, a non-derogable right under Article 25 and consequently violates Article 24 on limitation of rights and fundamental freedoms.

11. It was the Petitioner’s case that according to Articles 22 and 23 as read alongside Article 165 of Constitution, a person with an interest in land must access the Court to enforce their rights in instances where they are aggrieved with the manner an adjudication process is being conducted.

12. It was, therefore, the Petitioner’s contention that the requirement of the consent of the adjudication officer before commencement of any civil proceedings is tyrannical and vitiates Articles 22 and 23 as read with Article 48 of Constitution.

13. On the foregoing factual and legal arguments, the Petitioner urged this Court to interpret Constitution in a manner that promotes its values and principles and prayed for the following orders: -a.A declaration that section 30 of the Land Adjudication Act, Cap 284 of the Laws of Kenya is unconstitutional, null and void.b.In the alternative, where the Court finds that the said provision is in line with the provisions of the of Constitution, declaration that the same is not applicable where there is an aggrieved person pleads violation of Bill of Rights under Constitution of Kenya.c.Costs of this Petition.d.Or that such other orders as this Honourable Court shall deem just

The Petitioner’s submissions: 14. The Petitioner filed written submissions dated 20th September, 2021. To buttress his case, he submitted that the adjudication officer, while performing his duties, may omit or undertake action which may violate the rights and fundamental freedoms of the land owners residing in the adjudication section and the impugned section prevents such person from accessing Courts.

15. While seeking the conclusive position on the import the impugned section 30 and the constitutionality thereof, the Petitioner made reference to the varying decisions including Joseph S. Tootio & 12others v District Land Commission Section and Settlement Officer, Narok South & 24others , Ntingau Ole Nkoyo & 30others (2021) eKLR, Musana Ole Pere & Another v District Land Adjudication Section and Settlement Officer-Narok South & 23others Parmelai Pera & Another (interested Party) 2019 eKLR. and Republic v Musanka Ole Runkes Taraka &5 others Ex-parte Lesalol Lekitio &others (2015) eKLR.

16. In reference to sections 20, 21 and 22 of the Act which establish dispute resolution mechanisms, it was submitted that it is only upon the decision of a Committee, when an aggrieved party may file a complaint before it which shall subsequently refer it to the Arbitration Board.

17. The Petitioner thus submitted that there is no express dispute resolution mechanism where an aggrieved party can directly approach judicial bodies established under the Act and prosecute his claim.

18. It was submitted further that the process of settling a dispute under section 26 as read with section 29 of Land Adjudication act, vesting dispute resolution mechanism on the Adjudication Officer and the Cabinet Secretary and only as applicable after completion of the register and not before, strips a disgruntled person from ventilating their dispute in Court in light of the impugned section.

19. On the foregoing basis, the Petitioner submitted the limitation caused by the impugned section was not justifiable in an open and democratic society as provided for under Article 24 of Constitution.

20. It was urged that the Court should abide by Article 259 of Constitution which prohibits unnecessary hindrances towards accessing justice. The decision in Apollo Mboya v Attorney General & 2others (2018) eKLR was cited in support.

21. In conclusion, the Petitioner submitted that the impugned section was contrary to Articles 2, 3, 10, 22, 23, 24, 40, 48, 40 and 159 of Constitution. He urged this Court to find it unconstitutional.

The Respondents’ case: 22. The Honourable Attorney General and the Cabinet Secretary for Land and Physical Planning, 1st and 2nd Respondents herein respectively, opposed the Petition through Grounds of Opposition dated 16th September, 2021.

23. It was their case that the Petition does not raise any constitutional issues under the cited Articles and ought to be dismissed with costs.

24. It was claimed that the impugned section does not disclose any unconstitutionality as it only ousts the jurisdiction of the Court once adjudication process has started until the adjudication register has been completed.

25. It was urged that until contrary is proved, a legislation is presumed constitutional. To that end, it was stated that the procedure provided for by the impugned section must be followed as it facilitates access to justice, consistent with the dictates of Article 48 of Constitution.

26. Support on the foregoing was drawn from the decision in The Court of Appeal decision in The Speaker of The National Assembly v James Njenga Karume (1992) eKLR.

27. The Respondents contended that the impugned section does not bar the right to approach Court in proceedings where a party seeks to question the adjudication process or where a party seeks to question the legitimacy of the adjudication process.

28. It was its case that the provisions of Sections 26, 29 and 30 of the Actprovides an available, effective and sufficient recourse to parties aggrieved by the adjudication process which parties must exhaust before approaching Court.

29. The Respondents buttressed the foregoing on the basis of the decision in Geoffrey Muthinja Kabiru & 2others v Samuel Munga Henry & 1756others [2015] eKLR where it was observed that dispute resolution mechanisms outside Court must first be exhausted before the jurisdiction of the Court is invoked.

30. The Respondents claimed that the Petition had not demonstrated constitutional violations and prayed that it be dismissed with costs.

The Submissions: 31. The Respondents further urged their case through written submissions dated 18th November, 2021 where they reiterated the constitutionality of the impugned section stating that its import is to ensure that once the process of land adjudication has started, the process has to be finalized before one can move to Court for any redress.

32. The Respondents urged the Court to find nothing wrong in the impugned section and to that end referred to the decision in In the matter of Council of County Governors v Attorney General & another [2017] eKLR where the Court observed as follows: -My reading of the challenged section does not in any manner reveal any infringement of the provisions of Constitution. The challenged provisions are clear and precise, and unambiguous. However, if at all any limitations are imposed on the rights of the petitioners, then in my view such a limitation is proportionate considering the purpose of the law in question.

33. The Respondents further urged that the rights under Article 48 are not absolute as they can be limited by operation of the law where the limitation is reasonable and justifiable in an open and democratic society based on human dignity

34. Support of the foregoing position was found in the Supreme Court decision in Karen Njeri Kandie v Alassane Ba & another [2017] eKLR where it was observed that: -In that regard, it must be noted that the right of access to justice provided under Article 48 is not an absolute right listed under Article 25 of Constitution, and therefore it can, in proper circumstances, be limited by the law. In invoking Article 24(3), the respondents have presented submissions as to why this right is reasonably and justifiably limited.”

35. The Respondents reiterated the findings in the case of Environment & Land Case No. 471 of 2013 Martha Kigen v Johana Tibino where it was observed that: -In my view, Section 30 is to be applied when the rights of the parties are still the subject of determination in the adjudication process. The reasoning behind Section 30 is so that the process of determining rights of people in an adjudication area is left to the mechanism set out in the Land Adjudication Act and not to the Courts….

36. In a bid to clarify the requirement of seeking consent from the Adjudication Officer, support was found in the decision in Republic v Musanka Ole Runkes Tarakwa & 5others Ex - Parte Joseph Lesalol Lekitio &others [2015] eKLR where it was observed inter-alia: -…there would be no bar to instituting judicial review proceedings, to question the process being undertaken, and in my view, such proceedings, which go to question the process undertaken in the adjudication process would not require the consent of the land adjudication officer. This is because such a dispute would not be a dispute "concerning an interest in land" which is what section 30 (1) specifically bars a suit that questions the process of land adjudication, rather than the determination of interests, would not be a suit concerning an interest in land, and would therefore not require the consent of the land adjudication officer. But if a litigant wants to sue the adjudication officer, because the officer has decided that he is not entitled to the land in question, then in such a case, the litigant, must exhaust the appeal process provided in the land adjudication act, or if he feels that the issue needs to be decided by the Court, then he must seek the consent of the land adjudication officer, for the litigation in this instance, would clearly be litigation "concerning an interest in land.

37. In conclusion, the Respondents submitted that the Petition was anchored on misapprehension of the law and is undeserving of the orders sought. They prayed that it be dismissed with costs.

Analysis: 38. Having carefully perused the documents filed on record and the respective arguments, three issues arise for discussion. They are: -i.Whether the Petition raises constitutional issues.ii.Depending on (i) above, the principles of constitutional and statutory interpretation.iii.Whether Section 30 of Land Adjudication Act contravenes Article 48 of Constitution for impeding access to justice.

39. I will hence consider the issues sequentially.

a. Whether the Petition raises constitutional issues: 40. Constitutional Petitions are considered upon a Court satisfying itself that the issues raised are within the bounds circumscribed under Article 165(3)(b) as read with Articles 21, 22, 23 and 258 of Constitution.

41. It is the Respondents case that the instant Petition does not raise any constitutional issues.

42. This Court has keenly looked at the Petition. At the heart of the Petitioner’s grievance is the right of access to justice under Article 48 of Constitution. It is his case that the architecture of section 30 of the Land Adjudication Act is to impede the constitutional right to approach Court, a right guaranteed under Article 48 of Constitution.

43. Access to Justice is a cardinal pillar of Constitution. It seeks to ensure that impediments are not placed in peoples’ way in pursuit of their rights and fundamental freedoms as well those seeking to enforce or protect Constitution.

44. Such an expectation cannot be realized in instances where the access to justice is a mirage.

45. Article 48 of Constitution provides as follows: -The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

46. In Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) LtdHigh Court Constitutional Petition No. 328 of 2011 (2012) eKLR, the Court, rightly so, identified the components of access to justice in the following terms: -Access to justice is a broad concept that defies easy definition. It includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.

47. Article 48 of Constitution, therefore, does not only forbid any impediment on access to formal adjudicatory bodies but also requires legislation that facilitates its access rather than those which stifle it.

48. Having said so, there is need to delimit what a constitutional issue entail. In Fredricks &other vs. MEC for Education and Training, Eastern Cape &others (2002) 23 ILJ 81 (CC) the Court had the following to say: -Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

49. In the United States of America, a constitutional issue refers to any political, legal, or social issue that in some way confronts the protections laid out in the US Constitution.

50. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement. In the words of Langa, J in Minister of Safety & Security vs. Luiters, (2007) 28 ILJ 133 (CC): -… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…

51. Whereas it is largely agreed that Constitution of Kenya, 2010 is transformative and that the Bill of Rights has been hailed as one of the best in any Constitution in the world, as Lenaola, J (as he then was) firmly stated in Rapinder Kaur Atal vs. Manjit Singh Amrit case(supra) ‘… Courts must interpret it with all liberation they can marshal…’

52. Resulting from the above discussion and the definition of a constitutional issue, this Court agrees with the position in Turkana County Government & 20others vs. Attorney General &others (2016) eKLR where a Multi-Judge bench affirmed the profound legal standing that claims of statutory violations cannot give rise to constitutional violations.

53. Drawing from the above, it is the finding of this Court that the nature of the instant dispute raises a proper constitutional issue warranting this Court’s intervention.

54. The first issue is, therefore, answered in the affirmative. As such, the consideration of the rest of the issues follow.

b. Principles of constitutional and statutory interpretation: 55. Deriving from the foregoing finding, it is imperative to have a look at how Constitution and legislation ought to be interpreted and more importantly, how the latter measures up to the ideals of the former.

56. In David Ndii & others v Attorney General & others [2021] eKLR (famous referred to as ‘the BBI case’) the Court succinctly discussed the manner in which Constitution ought to be interpreted. The Learned Judges observed as follows: -399. One of the imports of recognition of the nature of the transformative character of our Constitution is that it has informed our methods of constitutional interpretation. In particular, the following four constitutional interpretive principles have emerged from our jurisprudence:a.First, Constitution must be interpreted holistically; only a structural holistic approach breathes life into Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated in In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR thus (at paragraph 26):But what is meant by a holistic interpretation of Constitution? It must mean interpreting Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.b)Second, our Transformative Constitution does not favour formalistic approaches to its interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle in Re Interim Independent Election Commission [2011] eKLR, para [86] thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.c)Third, Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the Retired CJ Mutunga expressed in his concurring opinion in In In Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013; [2013] eKLR. (paragraphs 155-157):(155)In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai& 3 others v Tarlochan Singh Rai and 4 Others Sup Ct Petition No 4 of 2012, I argued that both Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower Courts and other institutions can rely on, when they are called upon to interpret Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The Court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras.d)Fourthly, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya Case. It stated thus:(356)We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on Chapter Four – The Bill of Rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to Articles 4(2), 33, 34, and 35 of ourConstitution has been given above in paragraphs 145-163. (357)We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014 left off (see paragraphs 227- 232). In paragraphs 232 and 233 he stated thus:(232)…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.(233)It is possible to set out the ingredients of the theory of the interpretation of Constitution: the theory is derived from Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of Section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this Court as the custodian of the norm of Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya.400. With these interpretive principles in mind, which we will call the Canon of constitutional interpretation principles to our Transformative Constitution, we will presently return to the transcendental question posed in these Consolidated Petitions…...

57. In the case of Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR the Court of Appeal spoke further to the principles of constitutional and statutory interpretation by making the following remarks: -(21)…. Before the High Court embarked on the interpretation of the contentious provisions of Constitution, it restated the relevant principles of interpretation of Constitution as extracted from case law thus: - that as provided by Article 259 Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance.

that the spirit and tenor of Constitution must preside and permeate the process of judicial interpretation and judicial discretion.

that Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.

that the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).

These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statutes which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise. …… The court as an independent arbiter of Constitution has fidelity to Constitution and has to be guided by the letter and spirit of Constitution.

58. In Petition No. E290 of 2022 Victor Buoga v The Hon. Attorney General & The Independent Electoral and Boundaries Commission (2022) eKLR this Court further observed as follows:A Court dealing with the statutory interpretation must also subject the statutory provision to the three tests developed in the Canadian case in R. v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103. The tests are the objective test which the limitation is designed to serve. Second, the means chosen to attain the objective must be reasonable and demonstrably justified. This is the proportionality test. Third, the effect of the limitation.

59. Having laid the foundation upon which Constitution and legislation is given meaning, this Court will now consider the main issue in contest.

c.Whether Section 30 of Land Adjudication Act contravenes Article 48 of Constitution for impeding access to justice: 60. Before delving into the substance of the dispute, and in order to lay down the context within the impugned section operates, it is essential to have a comprehensive understanding of the objective of Land Adjudication Act (the Act’), how its provisions are implemented and by whom.

61. The general purpose of the Act is set out in its preamble as follows:An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto.

62. What comes to the fore is that theAct is only aimed at enforcing interests in respect to community land. It, therefore, guides the process through which those with interests in such lands get their interests ascertained, recorded and eventually registered. That process is referred to as ‘the land adjudication process’.

63. According to Section 5, land adjudication is done in adjudication section which is established by an adjudication officer within the adjudication area.

64. The officers involved in the process of implementing adjudication of land are the Cabinet Secretary for Lands together with an adjudication officer appointed the Cabinet Secretary. There are also demarcations officers, survey officers and recording officers who are all appointed by the Adjudication Officer.

65. In addition to the foregoing, there is in place an Adjudication Committee comprising of not less than 10 persons resident within the adjudication section. The members of that committee are appointed by the Adjudication officer after consultation with the District Commissioner (read County Commissioner) in the District which the adjudication section lies.

66. The duties of the adjudication officer under Section 9 of the Actis to exercise general supervision and control over the adjudication process, to hear and determine any petition respecting any act done, omission made or decision given by a survey officer, demarcation officer or recording officer; and any objection to the adjudication register.

67. The structural design of theActis, therefore, to put in place a mechanism where, in the course of the adjudication process, due attention is given to claims on the land including those recognized under customary law. For instance, Section 6 of the Actmakes allowance for appointment of an adjudication committee whose function as provided for in Section 20 is to adjudicate upon and decide in accordance with recognized customary law any question referred to it by the demarcation officer, advise adjudication officer on any question of recognized customary law, safeguard the interests of absent persons and persons with disability and bring to the attention of the officers engaged in adjudication any interest which has been made.

68. The Act also contemplates disputes during the adjudication process. Where an adjudication committee is unable to reach a decision on a matter before it or a party is dissatisfied with a decision of the Committee, such dispute is referred to the Arbitration Board created under Section 7 by the Provincial Commissioner (read Regional Commissioner) on the request of the adjudication officer.

69. Once the adjudication process comes up with a demarcation map and adjudication record (whereof the two are collectively referred to as the adjudication register), then any person named in or affected by the adjudication register has the tight under Section 26 to object to the adjudication register.

70. The Adjudication officer is then mandated to consider any objection and after consultation shall determine the objection and any person aggrieved by such determination has the right to appeal to the Cabinet Secretary in accordance to Section 29 of the Act.

71. With a view to safeguard the above process from Court-related litigation before completion, Section 30 of the Act was introduced so that the adjudication officer is firmly under the control of the process and is aware of any possible litigation over the adjudication area more so in respect of the matters the adjudication has jurisdiction over.

72. Section 30 of the Actprovides as follows: -30. Staying of land suits:(1)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.(2)Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.(3)Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Minister whose decision shall be final.(4)The foregoing provisions of this section do not prevent a final order or decision of a court made or given in proceedings concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not the subject of an appeal and the time for appeal has expired.(5)A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication section shall be conclusive evidence that the land is such land.(6)Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.

73. Section 30(1) of the Acthas it that any civil proceedings in respect to any interest in land under an adjudication area shall stand postponed until the adjudication register becomes final. The use of the word ‘until’ connotes a postponement of resolution of disputes through the Courts when mechanisms envisioned within the Act have not been exhausted.

74. The essence of Section 30 of the Act is, therefore, to allow parties to pursue their claims through the internal mechanisms provided for under the Act and to only revert to the Courts either with the consent of the adjudication officer or when the adjudication register becomes final. Section 30 is, hence, on the postponement of any intended proceedings before Court as opposed to a complete bar.

75. A closer look at Section 30 of the Act reveals that it indeed entrenches the concept of non-justiciability vide the doctrine of exhaustion. That is in line with the dictates of Article 159(2)(c) of Constitution which provides for alternative forms of dispute resolution.

76. As held by the Court of Appeal in Speaker of the National Assembly vs. James Njenga Karume [1992] eKLR: -…...we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.The basis for that view is first that Article 159 (2) (c) of Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of Constitution in a way that will accommodate the alternative dispute resolution mechanisms….

77. Section 30 of the Actis, therefore, not in contravention with Constitution. To the contrary, it upholds Constitution. The limitation caused by the impugned section meets the objectivity, proportionality and the effect tests as established in inR. vs. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103.

78. Further, this Court agrees with the decision inStanley Lezen Mliwa v Leonard Kapala Makangalu & 2others [2007] eKLR where Maraga J. (as he then was) disapproved the contention that Section 30 of the Act ousted Court’s jurisdiction. The Learned Judge observed as follows: -Section 30(1) of the Land Adjudication Act does not oust the court’s jurisdiction. All it does is to stop parties from rushing to court on any and every disagreement in the adjudication process until it is complete. If it were to be ignored, I do not think any adjudication process will be completed. Disagreements on even a minor issue like the boundary line will be taken to court and stall the adjudication process. That would be disastrous and definitely not in the public interest.

79. Having said so, there is also the need to look at the impugned section through the lenses of the Bill of Rights.

80. Articles 22 and 23 of Constitution provides for the enforcement of the Bill of Rights. It creates an avenue for any person to approach the High Court whenever rights and fundamental freedoms under the Bill of Rights are contravened or are threatened with contravention.

81. In such instances, the impugned section cannot be applied to bar a person from pursuing any claim under the Bill of Rights. I say so because the Bill of Rights is constitutionally-guaranteed and cannot be limited by a statute.

82. The use of the words ‘civil proceedings’ in Section 30 of the Act does not, therefore, bar a claim based on enforcement of the Bill of Rights. In other words, a constitutional petition based on infringement of the Bill of Rights cannot be barred by the provisions of the impugned section.

83. Coming to the end of this issue, suffice to say that whereas the impugned section is constitutional, it is nevertheless, not a bar to constitutional petitions on enforcement of the Bill of Rights.

Disposition: 84. Flowing from the above discussion, the Petition herein is determined as follows: -a.A declaration do hereby issue that Section 30 of the Land Adjudication Act, Cap 284 of the Laws of Kenya is constitutional.b.A declaration do hereby issue that the limitation to instituting civil proceedings imposed under Section 30 of the Land Adjudication Act is not applicable where an aggrieved person pleads violation of the Bill of Rights under Constitution.c.Each party do bear its own costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF DECEMBER, 2022. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss. Thiong’o, Counsel for the Petitioner.Mr. Marwa, Counsel for the Respondents.Kirong/Nawatola – Court Assistant