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Court of AppealDismissedCivil Appeal 159 of 2006· [2012] KECA 39 (KLR)

REPUBLIC V DISTRICT LAND ADJUDICATION OFFICER, TRANS-MARA DISTRICT) SAMSON KISERIAN KILERAI [2012] KECA 39 (KLR)

Court of Appeal of Kenya
28 November 2012
JOJ.W. Onyango OtienoAVAlnashir VisramRNR.N. Nambuye
3,695 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot sue over land in an ongoing adjudication area without the adjudication officer's written consent first.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Onyango Otieno, Visram and Nambuye JJA) dismissed the Republic's (ex-parte applicant Wilson Talengo Lemunge's) appeal against a ruling of Kaburu Bauni J of the High Court at Kisii dated 20th June 2006 dismissing a judicial review motion seeking certiorari and prohibition against the District Land Adjudication Officer's decision of 1st August 2003 cancelling parcel No. Ololchani 869 as fraudulent. The dispute arose from a complaint by Samson Kiserian Kilerai that plot 298 had been fraudulently subdivided to create parcel 869 in the appellant's name. The Court, acting as a first appellate court, re-evaluated the evidence and the provisions of the Land Adjudication Act Cap 284. It held that the adjudication process in Ololchani Adjudication Section had not been shown to be complete: there was no proof of the recording officer's forms or demarcation map constituting an adjudication register, no certification under section 25, no sixty-day objection period, and no delivery of the no-objection register to the Chief Land Registrar under sections 26A and 28. Consequently, section 30(1) barred access to the court without the adjudication officer's written consent. The Court also upheld the adjudication officer's jurisdiction under sections 9, 10, 11(b) and 12 to hear the petition and rectify the register, and found no error in the ex-parte hearing of the motion. The Court applied the settled judicial review principles in the two authorities cited by the appellant. The appeal was dismissed with costs of appeal to the respondents; each party to bear own costs in the High Court because the respondents did not participate in the hearing of the application.

Key legal issues

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01

Whether the adjudication process had been finalized so as to open access to the court by judicial review

Holding

It had not; there was no proof of a completed adjudication register under sections 23, 25, 26, 26A, 27, 28 and 29, and section 30(1) barred court access without the adjudication officer's written consent.

Reasoning

The Court construed sections 23 to 30 of the Land Adjudication Act globally. Completion arises when the adjudication officer certifies the record and demarcation map, displays them for the sixty-day inspection period, hears objections, prepares the no-objection register under section 26A and hands it to the Chief Land Registrar under section 28. None of this was demonstrated; the record lacked the recording officer's forms and demarcation map, so section 30(1) barred the judicial review route.

p. 5
02

Whether the District Land Adjudication Officer had jurisdiction to hear the petition and cancel parcel No. Ololchani 869

Holding

He did; under section 9 he could determine petitions and receive objections, under section 11(b) he could correct errors in the adjudication register, and section 12 gave him discretion in conducting proceedings provided civil procedure principles were observed.

Reasoning

The Court revisited sections 9, 10, 11 and 12 of the Act. Section 9 empowered the officer to determine petitions and hear objections to the adjudication register; section 10 mandated conduct of proceedings by way of evidence; section 11(b) allowed correction of errors following complaints; section 12 conferred absolute discretion in conducting proceedings so long as principles governing civil proceedings, such as attendance of parties, witnesses, oaths and cross-examination, were observed, which the record showed they were.

p. 5
03

Whether the ex-parte hearing of the judicial review motion occasioned a miscarriage of justice

Holding

No; the respondents had due notice and gave no reasons for non-attendance, and the court considered the merits on the documentation filed.

Reasoning

The Court agreed with the trial Judge's decision to proceed in the absence of the respondents since they had due notice of the hearing date and no reasons were given for non-attendance. The substantive motion was decided on its merits on the documentation before the court, so no miscarriage of justice was occasioned to either party.

p. 4

Legal principles established

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  • Except with the written consent of the adjudication officer, no person may institute and no court may entertain civil proceedings concerning an interest in land in an adjudication section until the adjudication register has become final under section 29(3) of the Land Adjudication Act.
  • The adjudication process is complete only after the adjudication officer certifies the adjudication record and demarcation map, the sixty-day inspection/objection period elapses, the no-objection register is handed to the Chief Land Registrar under section 28, and registration of the adjudicated plots is effected.
  • A first appellate court must analyse and re-evaluate the evidence afresh, while allowing for the advantage the trial court had of seeing and hearing the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The respondents to have costs of the appeal
  3. 3.Each party to pay own costs in the High Court, as the respondents did not participate in the hearing of the judicial review application

Authorities

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Legislation

  • Land Adjudication ActCap 284, section 3
  • Land Adjudication Actsection 9 (including 9(b))
  • Land Adjudication Actsection 10
  • Land Adjudication Actsection 11 (including 11(b))
  • Land Adjudication Actsection 12
  • Land Adjudication Actsection 19
  • Land Adjudication Actsection 23(1)
  • Land Adjudication Actsection 24
  • Land Adjudication Actsection 25
  • Land Adjudication Actsection 26
  • Land Adjudication Actsection 26A
  • Land Adjudication Actsection 27
  • Land Adjudication Actsection 28
  • Land Adjudication Actsection 29 (including 29(3))
  • Land Adjudication Actsection 30 (including 30(1))
  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder LIII rules 1, 2, 3, 4, 5 and 7

Cases cited (2)

  • Kenya National Examination Council versus Republic Exparte Geoffrey Gathanji Njoroge and 9 Others
    Nairobi CA 266 of 1996
  • Commissioner of Lands and another versus Coastal Aqua culture Limited
    KLR (E&C) 1
On appeal from
High Court of Kenya at Kisii
Miscellaneous Civil Application No. 123 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court's ruling dismissing a judicial review application (substantive jurisdiction under the Constitution creating the Court of Appeal; the judgment does not cite a specific Article)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "REPUBLIC V DISTRICT LAND ADJUDICATION OFFICER, TRANS-MARA DISTRICT) SAMSON KISERIAN KILERAI [2012] KECA 39 (KLR)", Case Analysis (2012). Civil Appeal 159 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/39/eng@2012-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.