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ELCDismissedJudicial Review Application (Notice of Motion dated 29th April 2013)· [2017] KEELC 2593 (KLR)

Francis Njeru Runji & 3 others v Suleiman Njiru Ciara & 5 others [2017] KEELC 2593 (KLR)

High Court of Kenya
19 May 2017
2,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Parties who choose to resolve a land dispute through a customary oath in Kenya cannot later claim the process was unfair when they lose.

What this practically means

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Executive summary

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This was a judicial review application in which the Applicants, representing the Ikandi Clan, sought an order of certiorari to quash the proceedings, findings and award of the District Commissioner Mbeere North dated 5th July 2012 in Land Appeal case No. 1358 of 1986, which had upheld awards arising from a land dispute with the Rwangudi Clan in Mbeere South. Their complaint was that the Land Adjudication Officer had, in objection proceedings on 17th June 1981, adopted the customary 'KAURUGO' oath as the sole determining factor instead of conducting a full trial on testimony, thereby denying them fair and full justice. The court, applying the settled principle that judicial review concerns the decision-making process rather than the merits, held that the parties themselves opted for the Kaurugo oath, signed an undertaking to that effect, and that this traditional dispute resolution mechanism is constitutionally recognised under Articles 11(1) and 159(2)(c), with no allegation that it contravened the Bill of Rights or was repugnant to justice or morality. The court further found that the District Commissioner, on appeal under Section 29 of the Land Adjudication Act, did not decide the dispute on the oath but went beyond his duty by hearing oral testimony from both sides. Citing authority that the Minister is not bound by civil suit procedure, the court found no procedural impropriety and no basis for exercising its discretion. The Notice of Motion dated 29th April 2013 was dismissed with costs.

Key legal issues

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01

Whether the parties' choice of the customary Kaurugo oath as the mode of adjudication rendered the Land Adjudication Officer's award procedurally improper

Holding

It did not; the parties themselves opted for the customary oath, which the Constitution recognises under Articles 11(1) and 159(2)(c), and no allegation was made that it contravened the Bill of Rights or was repugnant to justice and morality

Reasoning

The record of 17th June 1981 shows all parties opted to have their case conducted customarily by taking the Kaurugo oath, and they signed an undertaking to that effect. Article 159(2)(c) encourages traditional dispute resolution mechanisms subject only to the provisos regarding the Bill of Rights, justice, morality and consistency with the Constitution. The applicants never alleged any such contravention. Having chosen and squandered the opportunity, they cannot complain that no testimony was taken.

p. 5
02

Whether the District Commissioner's dismissal of the appeal was procedurally flawed for relying on the oath

Holding

No; the District Commissioner heard oral evidence from the parties' witnesses and decided the appeal on that evidence, not on the oath

Reasoning

The record shows Josphat Njagi Ndaru testified at length and called a witness, who were cross-examined, and the 1st respondent called three witnesses. The District Commissioner, acting for the Minister under Section 29 of the Land Adjudication Act, was under no obligation to hear witnesses at all, per Timotheo Makenge v Manunga Ngochi. He went beyond his duty, so the complaint of unprocedurality fails.

p. 5
03

Whether the court should exercise its discretion to grant judicial review remedies

Holding

The court declined to intervene because the decision-making bodies did not exceed their mandate or act unreasonably

Reasoning

Judicial review orders are discretionary and meant to check bodies determining parties' rights that abuse their powers. Unless such bodies exceed their mandates or reach decisions that are illogical or unreasonable, courts will be slow to intervene. The applicant was not persuaded that discretion should be exercised in the applicants' favour.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Decision-making bodies other than courts and statutory bodies are masters of their own procedure, and fairness does not always require an oral hearing
  • Once a party is given a reasonable opportunity to be heard and does not utilise it, they cannot complain of unfairness
  • The Minister on appeal under Section 29 of the Land Adjudication Act is not bound to follow the procedure laid down for hearing civil suits

Court orders

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  1. 1.The Notice of Motion dated 29th April 2013 is dismissed
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 29
  • Land ActSection 12(1)
  • Constitution of Kenya, 2010Article 11(1)
  • Constitution of Kenya, 2010Article 159(2)(c)

Cases cited (4)

  • Municipal Council of Mombasa vs Republic & Umoja Consulting Ltd
    Civil Appeal No. 185 of 2001
  • Kenya Revenue Authority vs Meginya Salim Murgan
    Civil Appeal No. 108 of 2009
  • Union Insurance Company of Kenya Ltd vs Ramzan Abdul Dhanji
    Civil Application No. 179 of 1998
  • Timotheo Makenge vs Manunga Ngochi
    Civil Appeal No. 25 of 1978 (1979 K.L.R 53)
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Law Reform Act / Constitution (not expressly cited 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, "Francis Njeru Runji & 3 others v Suleiman Njiru Ciara & 5 others [2017] KEELC 2593 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 29th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2593/eng@2017-05-19

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