Baikenda v M’Mbirithu & 4 others (Civil Appeal E056 of 2022) [2025] KECA 2141 (KLR) (28 November 2025) (Judgment)

Baikenda v M’Mbirithu & 4 others (Civil Appeal E056 of 2022) [2025] KECA 2141 (KLR) (28 November 2025) (Judgment) Neutral citation: [2025] KECA 2141 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E056 of 2022 S ole Kantai, JW Lessit & AO Muchelule, JJA November 28, 2025 Between James Kirema Baikenda Appellant and James Muthiane M’Mbirithu 1st Respondent Land Adjudication & Settlement Officer Igembe Central/North Sub Counties 2nd Respondent Director Of Land/Adjudication 3rd Respondent Lands Registrar-Maua 4th Respondent The Attorney General 5th Respondent (An appeal against the judgment and decree of the High Court at Meru (C.K. Nzili, J.) dated 6th March 2022 in Petition No. 10 of 2020) Judgment 1.The claim by James Muthiane M’Mbirithu (the 1st respondent) was that in 1995 he inherited Land Parcel No. 1037/Amwathi Mutuati IIA Adjudication Section measuring 2.54 acres from his father. The parcel was plotted and recorded in his name. Before this, his father and his family had since the 1970’s peacefully possessed, occupied and extensively developed the land. In 2017, the 1st respondent found out that the appellant James Kirema Baikenda had colluded with the Land Adjudication and Settlement Officer Igembe Central and North Sub Counties (the 2nd respondent) to import Parcel No. 1148 measuring one acre from another location and claim it on his land Parcel No. 1037. The appellant then filed Objection No. 741 against the 1st respondent’s parcel 1037 claiming the one acre. The objection was heard and on 24th May 2017 the appellant was awarded the one acre. The 1st respondent’s case was that he was not afforded a hearing during the hearing of the objection. He was entitled to be heard, now that he was aggrieved by the decision of the 2nd respondent to appeal to the Minister. He claimed that he sought from the 2nd respondent a copy of the decision and the proceedings to enable him appeal, but that he was not supplied. 2.This is what led him to file a constitutional petition dated 12th August 2020 before the Environment and Land Court at Meru in which he alleged that his rights contained in Articles 35, 40, 47, 48, 50, 60, 64, 68 and 159 of [the Constitution](/akn/ke/act/2010/constitution) had been violated. The petition was opposed by the respondents who included the Director of Land Adjudication (3rd respondent), Land Registrar, Maua (4th respondent) and the Attorney General (5th respondent). 3.In a judgment delivered on 16th March 2022, the learned C.K. Nzilli, J. found for the 1st respondent and held that the proceedings and eventual decision made by the 2nd respondent to award the appellant one acre contained in Parcel No. 1148 was null and void on the basis that the 2nd respondent had denied the 1st respondent his constitutional right under Article 47 of [the Constitution](/akn/ke/act/2010/constitution) and sections 5 and 6(3) of the [Fair Administrative Action Act](/akn/ke/act/2015/4) by failing to supply the objection decision and proceedings to enable the filing of appeal to the Minister. The objection proceedings and decision were quashed and an order made that the adjudication objection be remitted to be reconsidered under section 11 of the [Fair Administrative Action Act](/akn/ke/act/2015/4). 4.The appellant was aggrieved by the decision of the learned Judge and has come before us on appeal on 16 grounds, but which can be summarised as follows:-a.that the learned Judge erred in failing to dismiss the petition for lack of merit owing to the fact that the petition sought orders which were only awardable in a judicial review application;b.that the learned Judge erred in law and fact by quashing the entire ruling of the objection on the basis of technicalities that occurred following the objection decision;c.that the learned Judge erred in law and fact by failing to find that there was no evidence whatsoever that the 1st respondent had reasonably tried to obtain the award and the proceedings from the 2nd respondent;d.that the learned Judge had erred in law and fact by failing to consider that by the time of the petition the appellant had already been issued with title, and therefore the complaint by the 1st respondent had been overtaken by events; ande.that the learned Judge had erred in law and fact by failing to consider that the [Land Consolidation Act](/akn/ke/act/1959/27) had in it a dispute resolution mechanism which the 1st appellant had not exhausted before filing the petition. 5.This is a first appeal. Under Rule 31(1)(a) of the Court of Appeal Rules, 2022, and on the basis of the jurisprudence developed by this Court, we are required to subject the record before the ELC to a fresh and exhaustive review and evaluation to be able to draw our own independent conclusions on the issues of facts and law that were before the court. We are required to consider that the court had the benefit of seeing and hearing the witnesses who testified before it, and therefore to its findings on facts, unless such findings were based on no evidence, or on a misapprehension of the evidence, or were plainly wrong. Put differently, our duty is to review the entire case before the trial court, make our findings as we explain the reasons for the findings, and can reverse or affirm the trial court’s decision (see Peter M. Kariuki -vs- Attorney General [2014]eKLR). 6.The record shows that when the 1st respondent filed the petition before the ELC, his complaints were several. He alleged that the 1st and 2nd respondents had corruptly colluded to defraud him of his land; and that the 2nd respondent had entertained the objection without granting him both a fair hearing and a fair administrative action hence infringing on his constitutional right to own property. The learned Judge fund that the 1st respondent had been granted a fair hearing as he had actually participated in the proceedings leading to the objection award and had been asked questions by committee members during the proceedings. The claim that the 2nd respondent had heard the objection alone without being assisted by committee members as was required under section 26(1) of the [Land Consolidation Act](/akn/ke/act/1959/27) was discounted. Also discounted was the claim that there was fraud or collusion in the manner that the objection was heard and determined. 7.That left only one complaint: that the 2nd respondent failed to supply a copy of the objection decision and proceedings within a reasonable time and this was the reason why the 1st respondent was not able to appeal the decision to the Minister, which then forced him to file the petition instead. This is how the learned Judge dealt with this issue in the impugned judgment: -“30.The petitioner claims he was denied a copy of the proceedings and decision on time or at all by the 1st respondent so as to exercise his constitutional rights to appeal.31.The 1st respondent’s affidavit in reply at paragraph 2, 6, 7 and 8 does not specifically explain why he did not supply the decision and the proceedings within a reasonable time and or respond to the letters requesting for a copy of the decision.” 8.Under section 29(1) of the [Land Adjudication Act](/akn/ke/act/1968/35), the 1st respondent, if he was aggrieved by the determination of the objection by the 2nd respondent, was required to appeal to the Minister within 60 days of the decision. The 1st respondent claimed that he was aggrieved by the decision of the 2nd respondent and wanted to appeal to the Minister; and that he requested for a copy of the decision and the proceedings and they were not supplied. Under sections 107 and 109 of the [Evidence Act](/akn/ke/act/1963/46), the burden was on him to prove when it is that he requested for the copy of the decision and proceedings, whether the request was within the 60 days and whether it was true that he was not supplied (see Jennifer Nyambura Kamau -vs- Humphrey Mbaka Nandi [2013] eKLR). We reiterate this because in the submission by learned counsel Mr. Anampiu for the appellant, although the 1st respondent claimed that all his letters asking for a copy of the decision and proceedings from the 2nd respondent were ignored, the said letters were all written after the expiry of the 60 days appeal period; that there was no intention at all on the part of the 1st respondent to appeal the decision; and that, therefore, the reliance by the learned Judge on this ground to allow the petition was erroneous. 9.Looking at the Judgment by the learned Judge, it is indicated that the 2nd respondent had not adequately responded to the claim that the 1st respondent had been denied a copy of the decision and proceedings. With respect, the learned Judge fell into error. The 1st respondent was required to make the claim and follow it with evidence to support the claim before the 2nd respondent was called upon to answer. The burden to substantiate the claim was on the 1st respondent, and did not shift. We have looked at the record. The 1st respondent’s letters requesting for copy of the decision and proceedings were not annexed to the affidavits. The only relevant letter is dated 3rd March 2020 and was referring to his earlier letter dated 25th February 2020 requesting for consent to file a suit in court, and which request had been declined. The letter then mentioned that the 1st respondent had been issued with a copy of the award and proceedings but after the time to apply for judicial review had expired. One can see from the letter that the request for a copy of the decision and the proceedings was for purposes of filing a judicial review application. There was no evidence of any request, within the 60 days of appeal to the Minister, for a copy of the decision and proceedings from the 2nd respondent. In these circumstances, we find that the burden of proof was illegally shifted to the appellant and the 2nd respondent. There was no evidential basis for the finding by the learned Judge that the 1st respondent’s right under Article 47 of [the Constitution](/akn/ke/act/2010/constitution) was violated or infringed. 10.While concluding, we wish to reiterate that under [Land Adjudication Act](/akn/ke/act/1968/35) there is an adequate and elaborate process that helps to determine the rights and interests of all persons within the area that has been declared an adjudication section under the Act. The Act has provided a resolution mechanism in regard to any issues and disputes that may arise. Ultimately, an aggrieved party can appeal to the Minister whose decision is final. There are timelines embedded in the Act. They have to be obeyed. A party who is not satisfied with the decision on appeal can approach the court by way of judicial review, not on the merits of the decision but where the decision was ultra vires, or was tainted with procedural impropriety, or illegality or was irrational. The obtaining jurisprudence is that, where there is a clear procedure of redress of any particular grievance prescribed by [the Constitution](/akn/ke/act/2010/constitution) or statute that procedure has to be followed (see Speaker of National Assembly -vs- Karume [1992]eKLR; Julia Kaburia -vs- Kabeera & 5 Others, Civil Appeal No. 340 of2002 at Nyeri; Kenya National Examination Council -vs- Republic Ex parte Geoffrey Gathenji Njoroge and 9 Others [1997] eKLR). 11.The 1st respondent did not exhaustively subject himself to the dispute resolution mechanism provided under the [Land Adjudication Act](/akn/ke/act/1968/35). For that reason, and for the reason that even the complaint raised against the 2nd respondent in regard to failure to supply a copy of the decision and proceedings was not substantiated, we find the decision by the learned Judge had no basis in law and fact. We allow the appeal, and set aside the decree and orders contained in the Judgment that was delivered on 16th March 2022. 12.Costs shall be paid to the appellant by the 1st respondent. **DATED AND DELIVERED AT NYERI THIS 28 TH DAY OF NOVEMBER, 2025****S. ole KANTAI****........................................****JUDGE OF APPEAL****J. LESIIT****.......................................****JUDGE OF APPEAL****A.O. MUCHELULE****........................................****JUDGE OF APPEAL** I certify that this is a true copy of the originalSigned**DEPUTY REGISTRAR**