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ELCStruck OutChamber Summons application dated 27th August 2012 (Judicial Review)· [2014] KEELC 517 (KLR)

Robert Muli Matolo v Director of Land Adjudication & 2 others [2014] KEELC 517 (KLR)

High Court of Kenya
21 February 2014
JMJ. M. Mutungi
2,810 words in judgment
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The bottom line

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Kenya's High Court struck out a land judicial review case because the applicant never formally replaced deceased appellants and failed to name the decision-makers being sued.

What this practically means

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Executive summary

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The ex-parte applicant, a personal legal representative of two deceased appellants, sought judicial review orders of certiorari to quash the decision of the Director of Lands Adjudication and Settlement dated 2/8/2012 and consequential decisions of the Chief Land Registrar and District Land Registrar directing removal of a restriction on parcel No. Makueni/Kivani/1000 to facilitate issuance of title and re-opening of a road of access, and prohibition against interference with the parcel pending determination of Minister's Appeal No. 342 of 1989. The interested parties raised a preliminary objection on five grounds: lack of locus standi, defectiveness and incompetence of the application, the matter having been overtaken by events, non-joinder of the Chief Land Registrar, and non-annexure of the impugned decision. The court held that the applicant, having never sought substitution in the Minister's appeal in which the appellants died in 2006, lacked locus standi; that the Civil Procedure Rules apply with modification to appeals before the Minister and the appeal had effectively abated; and that failure to enjoin the decision-makers whose orders were sought to be quashed was fatal, Article 159(2)(d) notwithstanding. The court declined to rule on whether the orders had been overtaken by events, finding the factual position unclear. The preliminary objection was sustained and the application struck out with costs to the interested parties.

Key legal issues

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01

Locus standi of a personal representative not substituted in a pending Minister's appeal

Holding

The applicant lacked locus standi; he ought to have applied to be substituted in the appeal before the Minister, and the unprosecuted appeal would have abated

Reasoning

The two appellants whose estates the applicant represents died in 2006, and no substitution was effected within one year as required under Order 24 of the Civil Procedure Rules, so the appeal abated. The remaining appellants also died without representation. The applicant could not rely on the pendency of an appeal in which he was not a party to ground the judicial review application.

p. 3
02

Failure to enjoin the decision-makers whose decisions are sought to be quashed

Holding

The failure to name the Chief Land Registrar, Director of Land Adjudication and District Land Registrar as parties was fatal, rendering the application incompetent

Reasoning

The impugned decisions were made by the Chief Land Registrar and given effect by the District Land Registrar, Makueni, yet neither was made a party. Article 159(2)(d) does not displace established procedures for prerogative orders; affected persons must be made substantive parties to afford them an opportunity to defend their decisions.

p. 4
03

Whether the relief sought was overtaken by events because title had been issued

Holding

The court declined to decide this issue as the factual position on issuance of title was unclear and the objection succeeded on other grounds

Reasoning

The evidence did not establish whether the Chief Land Registrar's directive to remove the restriction had been acted upon and title issued. If it had, prohibition would be futile since prohibition cannot quash a decision already made. But since the applicant lacked locus standi and the application was defective, the court expressed no concluded view.

p. 5

Legal principles established

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  • In applications for prerogative orders, the tribunal or person whose decision is impugned must be made parties to the proceedings where their decisions are in issue
  • The Civil Procedure Rules apply with necessary modifications to appeals before the Minister under the Land Adjudication Act, and where a party to such an appeal dies, the legal representatives have a duty to seek substitution, failing which the appeal abates
  • Litigation must have closure; an appeal cannot pend indefinitely where parties have died and no substitution is made

Court orders

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  1. 1.The preliminary objection taken by the interested party is sustained
  2. 2.The application by the applicant is struck out
  3. 3.Costs of the application are awarded to the interested parties

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 24
  • Land Adjudication Act
  • Land Registration Act

Cases cited (4)

  • ELECTORAL COMMISSION OF KENYA (2002) KLR 487 (Welamondi case)
    (2002) KLR 487
  • Farmers Bus Service & others vs The Transport Licensing Appeal Tribunal
    1959 EA 779
  • MAHAJA vs KHUTWALO
    (1983) KLR 553
  • KENYA NATIONAL EXAMINATIONS COUNCIL AND THE REPUBLIC EXPARTE GEOFFREY GATHENJI NJOROGE & 9 OTHERS
Jurisdiction invoked
High Court's supervisory/judicial review jurisdiction over decisions of the Director of Lands Adjudication and Settlement, the Chief Land Registrar and the District Land Registrar, Makueni

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Robert Muli Matolo v Director of Land Adjudication & 2 others [2014] KEELC 517 (KLR)", Case Analysis (2014). Chamber Summons application dated 27th August 2012 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/517/eng@2014-02-21

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