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Court of AppealDismissedCivil Appeal No. 60 of 2017· [2018] KECA 393 (KLR)

Watuku Mutsiemi Watuku & another v Republic & 5 others [2018] KECA 393 (KLR)

Court of Appeal of Kenya
26 July 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeDMD. K. Musinga
3,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that a Minister's land adjudication appeal decision stands unless challenged through judicial review, which cannot be used to disguise an ordinary appeal on the merits.

What this practically means

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Executive summary

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This is a first appeal against the High Court at Malindi (Olola, J.) judgment of 13th July 2017 dismissing the appellants' judicial review application. The dispute traced back to a 1999 Land Disputes Tribunal award in favour of the interested party's late husband, adopted as a judgment of the Resident Magistrates' Court at Kaloleni and never appealed. Years later, during land adjudication, the original parcel was subdivided into three plots, two of which were allocated to the appellants, prompting the interested party's objections, which were dismissed at committee, board and adjudication officer levels. She then appealed to the Minister (Cabinet Secretary) under Section 29 of the Land Adjudication Act, albeit 18 days outside the 60-day window, and the appeal was allowed, directing registration of Plots 680 and 681 in her name. The appellants sought certiorari, mandamus and prohibition, contending the Minister acted ultra vires in entertaining an out-of-time appeal. The High Court dismissed the application, describing it as a case of concealment of material facts and contempt of court. The Court of Appeal, re-evaluating the evidence as a first appellate court, held that the 1999 judgment remained valid and binding, that the demarcation officer had acted against an un-set-aside court decision, that the timeliness objection was not raised before the Minister, and that the application was in substance an appeal disguised as judicial review, with judicial review remedies unavailable to parties seeking to perpetuate an illegality. The appeal was dismissed with costs to the 6th respondent.

Key legal issues

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01

Validity and binding effect of the tribunal award adopted as a judgment of the Resident Magistrates' Court

Holding

The 1999 award adopted as judgment remained valid and binding; the subsequent demarcation and registration of the land in the appellants' names six years after the death of the award holder was an attempt to subvert justice.

Reasoning

The Court found the Demarcation Officer wrongfully subdivided the original parcel into three plots and allocated two to the appellants contrary to the subsisting court decision. The adjudication officers disregarded a court finding that had never been set aside, so the High Court was right to uphold the Minister's decision reversing those allocations.

p. 4
02

Whether the Minister acted ultra vires in entertaining an appeal filed out of time under Section 29 of the Land Adjudication Act

Holding

The delay did not occasion prejudice to the appellants, and the objection to timeliness ought to have been raised before the Minister at the earliest opportunity; it was not raised there and could not sustain the judicial review application.

Reasoning

The Court was satisfied the delay in filing the appeal to the Minister caused no prejudice. Further, the point about filing out of time should have been raised before the 2nd respondent in the appeal itself; having failed to do so, the appellants could not recycle it as a ground of ultra vires in judicial review.

p. 5
03

Whether judicial review remedies were available

Holding

No. The complaints went to the merits of the Minister's decision; the application was an appeal disguised as judicial review, and the clean hands principle barred the appellants from obtaining the court's aid.

Reasoning

Judicial review is concerned with the manner a decision was reached, not private rights or merits. The appellants were aggrieved because the Minister overturned earlier decisions in their favour, and they had knowledge of the unappealed 1999 court judgment. They came to equity with unclean hands and could not invoke review remedies to perpetuate an illegality.

p. 5

Legal principles established

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  • An appeal to the Minister under Section 29 of the Land Adjudication Act is a final appeal in the adjudication process, subject only to the judicial review jurisdiction of the High Court, and is not an avenue for an appeal on the merits.
  • A party with knowledge of an existing unappealed court order who disregards it cannot use judicial review to perpetuate an illegality; judicial review concerns the decision-making process, not the merits.

Court orders

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  1. 1.The appeal fails and is dismissed with costs to the 6th respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1(1), (2), (3), 3 and 4
  • Law Reform ActSection 3
  • Judicature ActSections 7 and 8
  • Land Adjudication ActSection 26
  • Land Adjudication ActSection 29
  • Constitution of KenyaArticle 159
On appeal from
High Court of Kenya at Malindi
Misc. Application No. 5 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court's judicial review decision (judicial review under Order 53 of the Civil Procedure Rules, Section 3 of the Law Reform Act and Sections 7 and 8 of the Judicature Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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, "Watuku Mutsiemi Watuku & another v Republic & 5 others [2018] KECA 393 (KLR)", Case Analysis (2018). Civil Appeal No. 60 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/393/eng@2018-07-26

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