Kimetto v County Government of Baringo (Environment and Land Constitutional Petition 15 of 2022)  KEELC 822 (KLR) (15 February 2023) (Judgment)
Neutral citation:  KEELC 822 (KLR)
Republic of Kenya
Environment and Land Constitutional Petition 15 of 2022
L Waithaka, J
February 15, 2023
IN THE MATTER OF ARTICLES 22(1)(3)(b), 23(1), (2), 27, 40, 47, 48, 50, 159(1), 165(3)(a)(b) AND 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF RULES 4, 8, 10, 11, 13, 14, 20, 21 AND 23 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) AND PROCEDURE RULES, 2013 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 4 OF 2015 AND IN THE MATTER OF RULE 8, 9, 10, 19, 27 NATIONAL LAND COMMISSION (REVIEW) OF GRANTS AND DISPOSITIONS OF PUBLIC LAND REGULATIONS, 2017 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 2(1), 3(1), 10, 27, 40, 50(1) AND 157(1) & (2) OF THE CONSTITUTION OF KENYA, 2010
John Kibet Kimetto
County Government of Baringo
13.In his submissions filed on 4th October, 2022 the petitioner makes reference to Articles 22(3), 23(1), (3)(a) & (f); 47 of the Constitution; Section 9 of Fair Administrative Actions Act, 2015 and Section 13(1)(6) & (7) of the Environment and Land Court Act and submits that this court has jurisdiction to admit, determine the suit and to grant the reliefs sought.
14.Reliance is also placed on the decision in the case of Suchan Investment Ltd vs. Ministry of National Heritage & Culture & 3 Others (2019) eKLR.
15.On whether the petitioner has made up a case for being granted the orders sought, the petitioner reiterates his claim that prior to allotment of the suit lands, the respondent failed to comply with the legal processes laid down under Part 11 and 111 of Land Adjudication Act (LAA), Cap 284 Laws of Kenya and contends that there is no evidence that the LAO complied with Section 5(2)(e) of LAA or even afforded the petitioner an opportunity to be heard before the decision to take away their land was reached.
16.It is contended that the respondent argued that the suit lands were trust land held under the defunct County Council of Baringo and based on the decision in the case of Adan Abdirahani Hassan & 2 Others v Registrar of Titles & Others  eKLR submitted that the argument/defence by the respondent is outrageous, unlawful and out rightly unconstitutional.
17.With regard to the plea for the dispute to be remitted to the National Land Commission, it is submitted that the allotment of the petitioner’s ancestral land without due process without compensation or resettlement amounts to historical land injustice under Article 67(2)(e) of the Constitution and based on Article 67(2) (e) which clothes the National Land Commission (NLC) with powers to initiate investigations into present land injustice and recommend appropriate redress, it is submitted that the instant case meets the criteria for present historical land injustices under Section 38 of the Land Laws (Amendment Act No. 28 of 2016 and Section 4(a) of the National Land Commission Act.
18.In support of the proposal for remittance of the matter to NLC reference is made to the case of Suchan Investment (supra).
Analysis and determination
19.From the pleadings, affidavit evidence and submissions, it is clear that the petitioner is challenging the decision of the Minister made in Appeal to the Minister Case No. 263 of 2009.
20.The proceedings attached to the affidavit sworn in support to the Petition, marked J.K.K.4 show that the appellant was heard in the appeal by himself and his witness, John Komen Tuitoek. He was also accorded opportunity to cross examine the respondent’s witness/representative in the appeal. The proceedings also show that the Minister considered the cases presented before him before he arrived at the impugned decision. In that regard see the following excerpts of the proceedings that attest to that fact:-
21.It is clear that the Minister/his representative in discharge of the mandate vested on him under Section 29 of the LAA Act, heard and determined the case presented before him.
22.Under section 29(4) of LAA the decision of the Minister is final.
23.It has been held in many cases that a person aggrieved by the decision of the Minister should file a judicial review application to challenge the legality of the decision or process leading to making of the decision and not Constitutional Petition as the petitioner has done. In that regard see the case of Robert Kulinga Nyamu v Musembi Mutunga & another  eKLR where it was held:-
24.In John Masiantet Saeni v Daniel Aramat Lolungiro & 3 others  eKLR, Mutungi J in a similar case where the respondents raised a preliminary objection to the court for being res judicata held as follows:
25.Concerning the plea by the petitioner for the case to be referred to NLC, being of the view that the petitioner does not require an order of this court to institute a claim before the National Land Commission based on the alleged historical injustice, I decline the invitation to refer the suit as the petitioner has not satisfied the court where he did not institute the claim in the Commission.
26.The upshot of the foregoing is that the petitioner has not made up a case of being granted the orders sought or any one of them. Consequently, I dismiss the Petition with no order as to costs as it is undefended.
JUDGMENT READ, DELIVERED, DATED AND SIGNED AT ITEN THIS 15TH DAY OF FEBRUARY, 2023.L. N. WAITHAKAJUDGEIn the presence of:-Mr. Mureithi holding brief for Mr. Ndolo for the petitionerN/A for the respondentCOURTJudgment delivered virtually.L. N. WAITHAKAJUDGE15.2.2023