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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 76 of 2019· [2022] KECA 1340 (KLR)

Shamshudin Tar Mohamed v Minister's Appeal Tribunal & Mariakani Holdings Limited

Court of Appeal
2 December 2022
3,992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a land tribunal decision signed by only one of three members, after denying a party a hearing, is invalid.

What this practically means

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Executive summary

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The appellant, Shamshudin Tar Mohamed, appealed against a High Court ruling (Ogola, J, 12 April 2018) that quashed by certiorari the decision of the Minister of Lands dismissing Mariakani Holdings Limited's appeal under section 29 of the Land Adjudication Act concerning plot No 5 Kawala 'B' Adjudication Section, and prohibited registration of the plot in the appellant's name. The High Court had found the minister's decision invalid because it was signed by Fredrick Ayieko alone rather than all three panel members, that the tribunal ignored prior court judgments declaring the 1st respondent owner of the land, and that the 1st respondent's witness was denied a hearing. The High Court also held the judicial review application, filed October 30, 2015, was within time since the decision was undated and was certified on August 3, 2015. Before the Court of Appeal (S. Gatembu Kairu, P. Nyamweya & J. Lesiit, JJA), the appellant argued the judge misapprehended the evidence, that section 29(4) delegated the minister's power to a single public officer, that a fair hearing was accorded, and that the application was time barred. Applying the settled principles for interfering with discretionary decisions, the Court of Appeal found the judge's conclusions well supported by the record: the panel, not Ayieko alone, conducted the cross-examinations; no gazette notice evidencing delegation to a single officer was produced; the tribunal's own decision recorded that the caretaker was not allowed to testify; and no evidence showed the decision was rendered on the July 17, 2013 hearing date. The appeal was dismissed with costs to the 1st respondent, affirming the High Court ruling in its entirety.

Key legal issues

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01

Validity of the minister's decision for want of full signatures

Holding

The finding that the decision signed by Fredrick Ayieko alone, without the signatures of the other two panel members, was invalid in law was well supported by the evidence and could not be faulted.

Reasoning

The record showed a three-member panel heard the appeal, with cross-examination conducted 'by panel', yet only Ayieko signed the decision. No gazette notice or other evidence of delegation of the minister's powers to Ayieko alone under section 29(4) was produced by the appellant or the tribunal. The judge's conclusion of procedural and legal impropriety was therefore sound.

02

Fair hearing before the minister's tribunal

Holding

The tribunal's own decision recorded that the 1st respondent's caretaker was not allowed to give evidence because he could not identify himself, confirming the denial of a fair hearing.

Reasoning

The tribunal's findings expressly stated the caretaker 'was not allowed to give evidence since he couldn't identify himself (he didn't have an ID)'. The appellant's claim that nothing showed denial of audience was incorrect; the record spoke for itself, and the appellant had not addressed the fairness grievances in his replying affidavit.

p. 6
03

Whether the judicial review application was time barred

Holding

The minister's decision was undated; the only visible date was the certification date of August 3, 2015, and proceedings filed on October 30, 2015 were within time.

Reasoning

Two dates appeared on the record: the hearing date of July 17, 2013 and the certification date of August 3, 2015. No evidence showed the decision was rendered on the hearing date, so there was no basis for contending the decision could not have been issued on the date it was certified. The time-bar complaint therefore failed.

p. 6

Legal principles established

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  • The Court of Appeal will not interfere with a discretionary decision of the High Court unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
  • A decision of the minister's appeal tribunal under section 29 of the Land Adjudication Act made without the signatures of the members of the panel that heard the appeal is procedurally infirm and invalid in law.
  • Where delegation of the minister's powers under section 29(4) of the Land Adjudication Act is asserted, the party asserting it must produce the gazette notice or other evidence showing the delegation.
  • A tribunal's own record showing that a party's witness was not permitted to testify establishes a breach of the right to a fair hearing, justifying judicial review.

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Land Adjudication Actsection 29
  • Land Adjudication Actsection 29(4)
  • Interpretation and General Provisions Act (Cap 2)section 38(2)
  • Civil Procedure RulesOrder 53
  • Law Reform Actsection 9
  • Civil Procedure Acttime limit for judicial review (provision not specified)

Cases cited (2)

  • United India Insurance Co Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd v East African Underwriters (Kenya) Ltd
    [1985] eKLR

    Principles for when the Court of Appeal may interfere with a discretionary decision of a judge.

  • Raila Odinga & 6 others v Nairobi City Council, Nairobi HCCC No 899 of 1993 (1990-1994) EA482
    (1990-1994) EA482

    Cited by the appellant for the proposition that judicial review applications should be made within six months.

On appeal from
High Court of Kenya at Mombasa
Judicial Review Miscellaneous Application No. 45 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court ruling (specific constitutional/statutory provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shamshudin Tar Mohamed v Minister's Appeal Tribunal & Mariakani Holdings Limited", Case Analysis (2022). Civil Appeal 76 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1340/eng@2022-12-02

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