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ELCAllowedJudicial Review Application (Notice of Motion dated 2nd June 2011)· [2017] KEELC 3325 (KLR)

Republic v District Land Disputes Tribunal Mukurweini & 2 others ex parte Esther Kirigo Wanjohi [2017] KEELC 3325 (KLR)

High Court of Kenya

22 March 2017

LWL N Waithaka

834 words in judgment

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The bottom line

Kenya's High Court quashed a Land Dispute Tribunal award because the tribunal had no power to decide disputes involving a dead person's estate.

What this practically means

Executive summary

The ex parte applicant, Esther Kiringo Wanjohi, obtained leave on 18th May 2011 to apply for orders of certiorari and prohibition against a Land Dispute Tribunal award, by a notice of motion dated 2nd June 2011. She contended that the Tribunal acted in excess of jurisdiction in four respects: the proceedings related to the estate of a deceased person; the estate had not been administered as required by law; the Tribunal failed to make reference to the land in question; and the Tribunal lacked jurisdiction to adjudicate a dispute based on title to land. She also noted the award had not been adopted as a judgment of the court and that she lacked capacity to be sued on behalf of her husband's estate. The application was opposed as misconceived, incompetent and fatally defective. Examining the Tribunal's record, the court (L N Waithaka, J) found the dispute related to the estate of Wanjohi s/o Ndauu, a deceased person, and that the Tribunal did not even describe the parcel of land in respect of which the award was made. The court held that, no evidence showing the applicant was administrator or legal representative of the deceased, the proceedings offended Section 45 of the Law of Succession Act prohibiting intermeddling with a deceased's estate, and breached natural justice because the estate, not being a legal party, was denied an opportunity to be heard. Relying on the Gathenji Njoroge decision on when certiorari lies, the court held the application merited and allowed it as prayed. Judgment was delivered at Nyeri on 22nd March 2017.

Key legal issues

Jurisdiction of Land Dispute Tribunal over the estate of a deceased person

Holding

The Tribunal's proceedings against the estate of a deceased person, where no administrator or legal representative existed, were irregular and unlawful

Reasoning

The dispute before the Tribunal related to the estate of a deceased person (Wanjohi s/o Ndauu), and there was no evidence that the ex parte applicant was the administrator or legal representative. Proceedings against the estate offended Section 45 of the Law of Succession Act prohibiting intermeddling, and the estate was not legally a party to the suit.

p. 2

Breach of natural justice

Holding

By proceeding against an estate that was not a legal party, the Tribunal denied it an opportunity to be heard, breaching natural justice

Reasoning

The Tribunal proceeded against the estate of the applicant's deceased husband when the estate was not legally a party. This denied the estate a hearing on the claim urged against it, breaching the principle that a person likely to be affected by a decision must be given an opportunity to defend himself before such a decision is made.

p. 3

Entitlement to certiorari and prohibition

Holding

The ex parte applicant made out a case for the orders sought and the application was allowed as prayed

Reasoning

Having found the Tribunal's decision irregular and unlawful - made in excess of jurisdiction and in breach of natural justice - the court held the applicant was entitled to the prerogative orders, citing the Gathenji Njoroge decision, and allowed the application as prayed.

p. 3

Legal principles established

An order of certiorari will issue where the decision was made without or in excess of jurisdiction, or where rules of natural justice were not complied with
No person shall intermeddle with the estate of a deceased person except as authorised by the Law of Succession Act or a grant of representation

Court orders

1.The notice of motion dated 2nd June 2011 is allowed as prayed

Authorities

Legislation

Law of Succession Act, Cap 160 Laws of KenyaSection 45(1) and (2)

Cases cited (1)

Kenya National Examination Council V. Republic Ex parte Geoffrey Gathenji Njoroge and others
Civil Appeal No. 266 of 1996

Jurisdiction invoked: Leave granted on 18th May 2011 to apply for orders of certiorari and prohibition (Judicial Review)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v District Land Disputes Tribunal Mukurweini & 2 others ex parte Esther Kirigo Wanjohi [2017] KEELC 3325 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 2nd June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3325/eng@2017-03-22

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