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Court of AppealDismissedCivil Appeal No. 115 of 2015

Dominic Musei Ikombo v Kyule Makau [2019] KECA 482 (KLR)

Court of Appeal
19 July 2019
WKW. KaranjaJOJ. Otieno OdekSKS. ole Kantai
2,395 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that land cannot be awarded to deceased persons and that the six-month judicial review clock only starts when you actually learn of the decision.

What this practically means

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Executive summary

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This Court of Appeal appeal arose from a decades-old dispute over Land Parcel No. 2246 Mitamboni Adjudication Section between two related families. The District Commissioner, hearing a Minister's appeal under section 35 of the Land Adjudication Act, dismissed the Adjudication Officer's ruling and directed that the land be subdivided equally and transferred to Kavuu and Wayua. The Ruling bore contradictory dates: it was dated 27th April 2012 but signed and certified on 12th February 2013. The respondent successfully moved the High Court (Odunga, J.) for judicial review, obtaining certiorari and prohibition on two bases: that the six-month limitation period under section 9(3) of the Law Reform Act was inapplicable given the uncertain delivery date, and that awarding land to deceased persons was illegal. The appellant challenged both findings. The Court of Appeal framed three issues: the date from which the six-month limitation runs, whether letters of administration are mandatory for persons appearing for deceased parties under the Land Adjudication Act, and whether an award of land to deceased persons was a nullity. The Court held that limitation runs from when the decision is communicated or becomes known to affected parties, so the application was in time. It further held that customary-law representatives need not hold letters of administration in adjudication proceedings. However, it agreed that a deceased person cannot hold any interest in land, rendering the Minister's award a nullity amenable to judicial review. The appeal was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the date applicable in determining time limitation for purposes of judicial review is the date the Ruling is dated, or the date it is delivered
  2. 2.Whether for purposes of proceedings conducted under the Land Adjudication Act, letters of administration are mandatory for persons appearing for deceased parties
  3. 3.Whether it was a nullity for the minister to transfer the land in question to deceased persons

Key legal issues

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01

Commencement of the six-month judicial review limitation period

Holding

Time runs from the date the impugned decision is communicated to the affected parties or when they become aware of it, not the date it is dated or made.

Reasoning

The Court reasoned that a party can only challenge a decision within their knowledge; expecting otherwise would be irrational and would invite collusion with decision-makers to hide decisions until limitation expires. The appellant did not rebut the averment that the decision became known on 12th February 2013, so the leave application filed on 5th July 2013 was within time. Ako v Special District Commissioner was distinguished as no extension of time was sought.

p. 3
02

Whether letters of administration are mandatory under the Land Adjudication Act

Holding

They are not; customary-law representatives have locus standi before the adjudication committee or the Minister.

Reasoning

Adjudication proceedings are not akin to civil litigation under the Civil Procedure Act. The District Commissioner has wide latitude to conduct proceedings to meet the substantive ends of justice, and section 13 speaks of a 'guardian' or 'representative according to African Customary Law', not legal representatives. Strict rules on capacity to sue do not apply, so lack of letters of administration did not strip the parties of locus standi.

p. 3
03

Validity of an award of land to deceased persons

Holding

A deceased person cannot hold any interest in land; the award to Kavuu and Wayua was a nullity, properly quashed.

Reasoning

It was common ground that both beneficiaries were deceased when the award was made. Land could only be transferred to their legal representatives or families. The Court agreed with the High Court that the Minister's order amounted to a nullity incapable of execution, and a nullity is amenable to judicial review. On this ground alone the appeal failed.

p. 3

Legal principles established

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  • The six-month limitation period for judicial review under section 9(3) of the Law Reform Act runs from the date the impugned decision is communicated to or becomes known to the affected parties, not the date it is made.
  • In proceedings under the Land Adjudication Act, a person appearing for a deceased family or clan head need not hold letters of administration; representation under African customary law suffices.
  • A deceased person cannot hold proprietary rights or any interest in land; an award transferring land to a deceased person is a nullity and amenable to judicial review.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party bears its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

WK
majority
JO
majority
SK
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Application No. 246 of 2013
Jurisdiction invoked
First appellate jurisdiction over the High Court's judicial review decision under the Law Reform Act (Order 53 judicial review appeal)

Relief refused

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Setting aside the High Court's orders of certiorari and prohibition quashing the District Commissioner's award

The award to deceased persons was a nullity in law and amenable to judicial review

p. 3

Costs

Each party bears its own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court has addressed this point in several decisions and held that the six months should start running from the date the impugned decision is communicated to the affected parties or when they become aware of it.
p. 3Limitation period for judicial review
It is not therefore necessary for a person appearing on behalf of a family or clan where the head of the family or clan has died to possess letters of administration in respect of a deceased claimant.
p. 3Representation under the Land Adjudication Act
To that extent, we agree with the learned Judge that the minister made an order that amounted to a nullity in law, and the award is not capable of being executed. Where the decision is a nullity in law, then the same is amenable to judicial review.
p. 3Nullity and judicial review
Accordingly, this appeal fails. The same is hereby dismissed but in view of the fact that the parties are close relatives, the order that commends itself to us is that each party bears its own costs of this appeal.
p. 3Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Dominic Musei Ikombo v Kyule Makau [2019] KECA 482 (KLR)", Case Analysis (2019). Civil Appeal No. 115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/482/eng@2019-07-19

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