Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Judicial Review Case No. 1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011)

Republic v District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)

Environment and Land Court of Kenya
1 February 2017
2,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The court dismissed a church's attempt to reclaim land because it filed its judicial review case over six years late, past Kenya's strict six-month deadline.

What this practically means

#

Executive summary

#
The Ex-parte Applicant, Chairman of the Management Committee of Orengo Catholic Church, sought certiorari to quash the registration of the 3rd Respondent as proprietor of Siaya/Nyaguda/3655 and the objection proceedings and decision of 12th April 2001, plus prohibition against further objection proceedings. The church claimed it had bought the land before adjudication, was registered as proprietor, but lost it after an objection decided without a fair hearing by a Land Demarcation Officer lacking jurisdiction; a District Adjudication Officer's letter of 5th June 2001 had nullified that decision, yet the Land Registrar registered the 3rd Respondent on 10th November 2010. The 3rd Respondent countered that the church failed to pay the agreed purchase price, the objection was properly heard before the Land Adjudication Officer, and the officer had no power to nullify the proceedings by letter. The court found the objection proceedings were heard by the Land Adjudication Officer (initials 'L.A.O'), that the parties received a fair hearing, and that the Land Adjudication Officer's nullification letter was ultra vires Section 11(b) and void ab initio, the proper remedy being an appeal to the Minister under Section 29. The Land Registrar acted lawfully under Section 28. The court further held the application was statute barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2, the six-month period being incapable of extension, and that proceedings brought under Order 53 could not be recharacterised as fundamental rights enforcement. The notice of motion dated 19th October 2011 was dismissed with costs to the 3rd Respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant was denied fair hearing during the 3rd Respondent's objection proceedings that resulted in the decision of 12th April 2001
  2. 2.Whether the objection proceedings were heard and determined by the Land Demarcation Officer or the Land Adjudication Officer
  3. 3.Whether the Land Adjudication Officer is empowered under Section 11(b) of the Land Adjudication Act to nullify objection proceedings and decisions undertaken under Section 26 of the Act
  4. 4.Whether the notice of motion is statute barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules
  5. 5.Whether the application is one of violation of a fundamental right enforceable under Article 22(1) and 23(2)(f) of the Constitution
  6. 6.What orders to issue
  7. 7.Who pays the costs

Key legal issues

#
01

Fair hearing in adjudication objection proceedings

Holding

The Applicant was afforded a fair hearing; the church was represented and heard during the objection proceedings

Reasoning

The record of the objection proceedings showed the church was represented by Vitalis Okere Adede who was heard, and this deposition was not challenged. Nothing in the proceedings supported the claim that the church sought and was denied time to present other witnesses. The decision was rendered under Section 26(2) of the Land Adjudication Act.

p. 4
02

Identity of the officer who heard the objection

Holding

The objection proceedings were heard and determined by the Land Adjudication Officer, not the Land Demarcation Officer

Reasoning

The initials 'L.A.O' appearing on the proceedings and decision could only be understood to refer to Land Adjudication Officer, not Land Demarcation Officer. The Applicant produced no documentary evidence proving the proceedings were before a Demarcation Officer, and the District Adjudication Officer's letter did not state otherwise.

p. 4
03

Powers of the Land Adjudication Officer under Section 11(b)

Holding

The Land Adjudication Officer exceeded his powers in purporting to nullify the objection proceedings by letter of 5th June 2001, which was null and void ab initio

Reasoning

Section 11(b) empowers only the correction of errors or supply of omissions in the adjudication register. Disputes over objections under Section 26 are catered for by appeals to the Minister under Section 29. The nullification letter was therefore ultra vires.

p. 4
04

Statutory limitation for judicial review leave

Holding

The notice of motion was statute barred, having been filed more than six months after both the decision of 12th April 2001 and the registration of 10th November 2010

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules require leave applications within six months. The church knew of the decision in May 2001 and of the registration in February 2011, yet the chamber summons for leave was filed on 6th October 2011, outside the period from either date.

p. 5

Legal principles established

#
  • The six-month period prescribed by statute for applying for leave to apply for judicial review cannot be extended
  • The power under Section 11(b) of the Land Adjudication Act to correct errors does not extend to nullifying objection proceedings decided under Section 26
  • Where proceedings are brought under Order 53 of the Civil Procedure Rules, they are not founded on alleged violation of fundamental rights under Article 22(1) and 23(2)(f) of the Constitution

Court orders

#
  1. 1.The notice of motion dated 19th October 2011 is dismissed
  2. 2.Costs awarded to the 3rd Respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; Law Reform Act (Certiorari and Prohibition)

Relief refused

#

Order of certiorari to quash the registration of the 3rd Respondent as proprietor of Siaya/Nyaguda/3655 and the objection proceedings and decision of 12th April 2001

Application filed outside the six-month statutory limitation period; fair hearing was accorded; the Land Adjudication Officer's nullification letter was itself void

p. 5

Order of prohibition restraining the Demarcation Officer from hearing the objection proceedings

The objection proceedings were properly undertaken under Section 26 of the Land Adjudication Act and were already determined

p. 5

Costs

Dismissed with costs to the 3rd Respondent

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The notice of motion dated 19th October 2011 is for reasons set out above dismissed with costs to the 3rd Respondent.
p. 5disposition
the six months period being specified by statute to apply for leave cannot be extended
p. 5limitation for judicial review
was in excess of his powers and therefore null and void ab initio
p. 4ultra vires nullification of objection proceedings
The initials “L.A.O” in the proceedings cannot be understood to refer to Land Demarcation Officer but to Land Adjudication Officer.
p. 4identity of adjudication officer
Land Registrar Bondo cannot be faulted for registering the 3 rd Respondent as proprietor of land parcel Siaya/Nyaguda/3655 on 10th November 2010 as the office was obligated under Section 28 of the Land Adjudication Act to cause the registration in receipt of the adjudication register.
p. 4duty of the Land Registrar

Issues in the judgment

#
minor

The 3rd Respondent is named in the cause title as 'Lawrence Atinga Bondo' but elsewhere in the judgment as 'Lawrence Atinga Oyundi'

minor

Grounds list refers to 'Article 25 (c) of the constitution' as a fundamental rights provision while the judgment discusses Articles 22(1) and 23(2)(f)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)", Case Analysis (2017). ELC Judicial Review Case No. 1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3722/eng@2017-02-01

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