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ELCDismissedJ.R Misc. Civil App. No. 2 of 2013· [2013] KEELC 37 (KLR)

Republic v District Land Adjudication and Settlement Officer Kilifi District & 2 others Ex Parte Kilifi Munga Alfred & another [2013] KEELC 37 (KLR)

Environment and Land Court
8 November 2013
OAO. A. Angote
2,022 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a judicial review challenge to Kilifi land adjudication because the applicants skipped the dispute process the Land Adjudication Act requires.

What this practically means

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Executive summary

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The seventeen Ex-parte Applicants, residents of Madzimbani/Mitangoni adjudication section in Kilifi, sought judicial review orders of mandamus and certiorari by Motion dated 1st March 2013, to compel the District Land Adjudication and Settlement Officer and the Commissioner of Lands to avail their decision demarcating and allocating plots 1-69 in the names of the respondents, and to quash it, contending the demarcation deprived them of their ancestral land rights contrary to section 40 of the former Constitution. The 38th Respondent, on his own behalf and for thirty others, denied the Applicants' claims, asserting they were not residents or blood relatives of the 1966 Kaloleni claimant and that adjudication followed the Land Adjudication Act, Cap 284. The District Land Adjudication and Settlement Officer deponed that the adjudication section was established on 7th June 2012, the Applicants' claims were heard and determined by the Land Committee, they lost and were advised to appeal to the Arbitration Board, with 54 cases still pending. Angote J restated the scope of mandamus and certiorari, held that the Commissioner of Lands has no statutory role in land adjudication and that no order could issue against him. The court found the Applicants had not exhausted the statutory dispute resolution mechanisms and that no decision had been made by the 1st Respondent capable of being quashed. The Motion was dismissed with costs to the Respondents.

Key legal issues

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01

Whether mandamus and certiorari could issue against the Commissioner of Lands

Holding

They could not, as the Commissioner of Lands has no statutory function in land adjudication

Reasoning

The court held that the Land Adjudication Act, Cap 284 does not donate to the Commissioner of Lands any administrative or quasi-judicial functions in ascertaining rights over customary or trust land. Since mandamus compels performance of statutory public duty and certiorari quashes decisions of persons performing public duty, neither order could issue against a party with no such role in the adjudication of the suit plots.

p. 4
02

Whether the Ex-parte Applicants were entitled to judicial review before exhausting the Land Adjudication Act procedure

Holding

They were not; the statutory dispute resolution mechanisms (land committee, arbitration board, objections, appeal to the Minister) had to be exhausted first

Reasoning

The court traced the elaborate statutory scheme under the Land Adjudication Act: adjudication committees determine claims under customary law, unresolved matters go to arbitration boards, objections lie to the adjudication officer, and appeals lie to the Minister. The Applicants' complaints had not even been decided by the 1st Respondent, and 54 cases were pending before the Land Committee. Judicial review was therefore premature.

p. 5

Legal principles established

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  • A court will not substitute statutory bodies established to resolve land adjudication disputes; the statutory procedure must be exhausted before judicial review is sought
  • Mandamus compels performance of a public duty imposed by statute where the person entitled to its performance has a legal right
  • Certiorari lies to quash decisions tainted with illegality, irrationality or procedural impropriety

Court orders

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  1. 1.The Ex-parte Applicants' Notice of Motion dated 1st March 2013 was dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaSection 40
  • Land Adjudication Act, Cap 284Section 5
  • Land Adjudication Act, Cap 284Section 4
  • Land Adjudication Act, Cap 284Section 12
  • Land Adjudication Act, Cap 284Section 21
  • Land Adjudication Act, Cap 284Section 28

Cases cited (2)

  • Kenya National Examinations Council Vs R; ex-parte Geoffrey Gathinji & Others
    Civil Appeal No. 266 of 1996
  • An Application by Bukoba Eymkhana Club
    (1963) EA 478
Jurisdiction invoked
Judicial review jurisdiction of the High Court under section 40 of the Constitution of Kenya (repealed), transferred to the Environment and Land Court at Malindi

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, "Republic v District Land Adjudication and Settlement Officer Kilifi District & 2 others Ex Parte Kilifi Munga Alfred & another [2013] KEELC 37 (KLR)", Case Analysis (2013). J.R Misc. Civil App. No. 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/37/eng@2013-11-18

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