Lydia Kuri Silas v Land Adjudication Officer Tigania Districts & 2 others [2017] KEELC 3332 (KLR)

Section 26 of the Land Consolidation Act, Cap 283 stipulates that objections be heard with the involvement of a committee. The state counsel representing the respondent conceded that the officer proceeded to hear the dispute without the committee. None of the interested parties rebutted these averments; indeed the 1st interested party wholly supported the prayers sought. The motion therefore succeeded on the ground of lack of jurisdiction.

The court noted that the objector in Objection No. 832, M'THIRIBI IKIAO, was deceased but was represented by his son, the 1st interested party, which was quite in order. Relying on Tobias Achola Osindi v Cyprianus Otieno Ogalo, a claim under the Act can be made by successors of a deceased person and not necessarily the deceased's legal representatives. Had the applicant based her application solely on the absence of letters of administration, she could not have succeeded.

Joseph Mwika was said to have assumed possession of the disputed land, having purchased it from Thiruane Ikiao. The court agreed with the 2nd interested party that it would have been far better to enjoin both persons as interested parties if alive. However, since the court had already found that the Land Adjudication Officer had no jurisdiction, the failure to join them did not affect the outcome.

The applicant had requested the D.L.A.S.O. to visit the scene and, when refused, requested his disqualification by letter. The court held that a cardinal principle of fairness is being given an opportunity to be heard, and that fairness is a legitimate expectation enshrined in Article 50(1) of the Constitution. There was nothing to show the applicant's complaints were addressed at all, leading to the conclusion that the proceedings were unfair and biased, a further ground for quashing.