Republic v District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the objection proceedings were heard and determined by the Land Demarcation Officer or the Land Adjudication Officer
- 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.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.Whether the application is one of violation of a fundamental right enforceable under Article 22(1) and 23(2)(f) of the Constitution
- 6.What orders to issue
- 7.Who pays the costs
Key legal issues
#Fair hearing in adjudication objection proceedings
The Applicant was afforded a fair hearing; the church was represented and heard during the objection proceedings
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.
Identity of the officer who heard the objection
The objection proceedings were heard and determined by the Land Adjudication Officer, not the Land Demarcation Officer
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.
Powers of the Land Adjudication Officer under Section 11(b)
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
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.
Statutory limitation for judicial review leave
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
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.
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.The notice of motion dated 19th October 2011 is dismissed
- 2.Costs awarded to the 3rd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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
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.
the six months period being specified by statute to apply for leave cannot be extended
was in excess of his powers and therefore null and void ab initio
The initials “L.A.O” in the proceedings cannot be understood to refer to Land Demarcation Officer but to Land 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.
Issues in the judgment
#The 3rd Respondent is named in the cause title as 'Lawrence Atinga Bondo' but elsewhere in the judgment as 'Lawrence Atinga Oyundi'
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.