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ELCPartially AllowedJudicial Review Notice of Motion dated 21st June, 2011 (Makueni Minister's Land Appeal Case No. 48 of 2009 impugned)· [2017] KEELC 83 (KLR)

Republic v District Commissioner Makueni & 2 others Ex-Parte Cyrus Muli Kula [2017] KEELC 83 (KLR)

High Court of Kenya
13 December 2017
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed a District Commissioner's land appeal decision because he had no power to replace a deceased appellant or overturn court judgments.

What this practically means

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Executive summary

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The ex parte applicant, Cyrus Muli Kola, sought an order of certiorari to quash and an order of prohibition against implementation of the findings and decision of the District Commissioner–Makueni in Makueni Minister's Land Appeal Case No. 48 of 2009, brought under Order 53 Rule 3 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act. The applicant contended that the District Commissioner acted ultra vires and without jurisdiction by overturning judgments of courts of competent jurisdiction, ordering subdivision of land already adjudicated upon, substituting the deceased appellant Nzuve Muithya with persons not appointed as his legal representatives under the Law of Succession Act, and denying the deceased an opportunity to be heard. The 1st and 2nd interested parties argued that proceedings under the Land Adjudication Act are special proceedings in which substitution was unnecessary and that the applicant fully participated and raised no objection at the time, relying on Lenaola J's decision in Republic v the Special District Commissioner. The 3rd interested party argued breaches of natural justice and Article 50 access to justice. The court, associating itself with Mutungi J in Roberts Muli Matolo, held that personal representatives of a deceased person can only be appointed by the High Court and, in some cases, magistrates' courts notwithstanding that land adjudication proceedings are special proceedings. It found the District Commissioner acted illegally and without jurisdiction, and that his proceedings, any reports by persons he appointed, and the resulting decision were a nullity. The court granted prayers 1, 2 and 3: certiorari quashing the proceedings and findings, prohibition against their implementation, and costs to the applicant. It declined the 3rd interested party's request to consider alleged joint ownership of the suit parcels, holding this would exceed the scope of judicial review.

Key legal issues

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01

Substitution of a deceased appellant before the Minister's appeal

Holding

The District Commissioner acted illegally and without jurisdiction in purporting to appoint personal/legal representatives of the estate of Nzuve Muithya; the proceedings, reports and decision arising from such proceedings are a nullity

Reasoning

The court held that the power to appoint personal/legal representatives of a deceased estate vests exclusively in the High Court and, in some cases, the magistrates' courts under the Law of Succession Act. Even though the appeal lodged by the deceased survived his death, it could only be prosecuted by representatives duly appointed by the courts. It aligned itself with Mutungi J's decision in Roberts Muli Matolo that legal/personal representatives have a duty to seek substitution.

p. 3
02

Power of a quasi-judicial body to overturn court judgments

Holding

The District Commissioner lacked authority to overturn decisions/judgments of courts of competent jurisdiction

Reasoning

The court accepted counsel's submission that judicial or quasi-judicial bodies cannot overturn a court's judgment; only higher courts on appeal, or the same court on review, may upset such decisions. In purporting to order measurement and subdivision of land already adjudicated upon by courts with boundaries fixed, the District Commissioner acted ultra vires his mandate under the Land Adjudication Act.

p. 3
03

Scope of judicial review

Holding

The court declined the 3rd interested party's request to consider alleged joint ownership of the suit parcels, as that would exceed the scope of judicial review

Reasoning

The court reiterated that judicial review concerns the legality, irrationality and procedural propriety of the decision-making process, not the merits. The court cannot substitute the impugned decision with its own. It therefore declined the 3rd interested party's invitation to factor in alleged clan division and joint ownership of the parcels.

p. 3

Legal principles established

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  • Personal representatives of a deceased person under section 3 of the Law of Succession Act can only be appointed by the High Court and, in some cases, by the magistrates' courts, even in special proceedings under the Land Adjudication Act
  • A quasi-judicial body cannot overturn judgments of courts of competent jurisdiction; such decisions can only be upset on appeal or review by courts

Court orders

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  1. 1.An order of certiorari removing to the High Court and quashing the proceedings and findings of the District Commissioner–Makueni in Makueni Minister's Land Appeal Case No. 48 of 2009
  2. 2.An order of prohibition prohibiting the District Commissioner–Makueni from implementing and/or causing to be implemented his findings/decision made in Makueni Minister's Land Appeal Case No. 48 of 2009
  3. 3.Costs of the proceedings awarded to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3
  • Law Reform Act, Cap 26Sections 8 and 9
  • Land Adjudication Act, Cap 284Sections 3, 47 and 48
  • Law of Succession ActSections 3, 47, 48, 82(a)
  • Constitution of KenyaArticle 50
  • Civil Procedure Act
  • Judicature Act
  • Appellate Jurisdiction Act

Cases cited (8)

  • Republic Vs the Special District Commissioner, Machakos High Court Misc Application number 63/2004
  • Roberts Muli Matolo V Dircetor of Land Adjudication & 2 others, Nairobi ELC No. 599/13
  • Onyango Oloo vs Attorney General
    [1986 – 1989] EA 456
  • Registrar of Government Lands & 3 others Ex-parte John Njugi Gathumbi
    [2014] eKLR
  • Republic Vs Permanent secretary of Housing & Another
    (2014) eKLR
  • Pastoli Vs Kabate District Local Government Council and others
    [2008] 2 EA 300
  • Republic Vs Kenya Revenue Authority Expartes Yaya Towers Limited
    [2008] eKLR
  • Westminister Corporation Vs London and Northwestern Rail Co.
    (1905) AC 426
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, Cap 26

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 Commissioner Makueni & 2 others Ex-Parte Cyrus Muli Kula [2017] KEELC 83 (KLR)", Case Analysis (2017). Judicial Review Notice of Motion dated 21st June, 2011 (Makueni Minister's Land Appeal Case No. 48 of 2009 impugned). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/83/eng@2017-12-13

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