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ELCDismissedJudicial Review Application (Order 53 Rules 1 & 2 CPR; Sections 8 & 9 Law Reform Act)· [2018] KEELC 122 (KLR)

Paul Mutethia Mboroki v Land Adjudication & Settlement Officer, Buuri Sub-County & another; Catherine Ngiritu Marete (Interested Party) [2018] KEELC 122 (KLR)

Environment and Land Court
7 December 2018
1,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's bid to force an adjudication officer's consent, ruling he had to appeal to the Minister first.

What this practically means

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Executive summary

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The ex parte applicant, Paul Mutethia Mboroki, moved the Environment and Land Court at Meru by way of judicial review under Order 53 rules 1 and 2 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, seeking an order of mandamus to compel the Land Adjudication Officer to issue consent under section 30 of the Land Adjudication Act (cap 284) to enable him to sue the interested party over an alleged encroachment of about half an acre of his parcel Ruiri/Rwarera/5311. He deponed that his mother shared out her land in 1997, later sold her retained portion to the interested party, and that the interested party used her influence as a government employee to expand her boundary into his parcel. He averred that two demand letters to the adjudication officer went unanswered. The interested party denied any role in the issuance of consents and did not oppose the consent being granted, while the respondents opposed through grounds of prematurity under section 30(3) and the discretionary nature of judicial review remedies. The court, applying the doctrine of exhaustion as articulated in Speaker of National Assembly vs Karume, held that silence on the demand letters could be treated as refusal, but the applicant's remedy was a written appeal to the Minister within twenty-eight days under section 30(3). The application was found misconceived, premature and lacking in merit, and was dismissed with no order as to costs.

Key legal issues

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01

Exhaustion of statutory remedies under section 30 of the Land Adjudication Act

Holding

The applicant's remedy upon refusal or silence of the adjudication officer was to appeal to the Minister under section 30(3); judicial review was premature

Reasoning

Section 30(1) bars civil proceedings in an adjudication section without the adjudication officer's written consent, and section 30(3) provides that a person aggrieved by refusal of consent may appeal in writing to the Minister within twenty-eight days. The court inferred refusal from the respondent's failure to respond to two demand letters, but held the applicant should have pursued the appellate route before coming to court.

p. 3
02

Whether refusal of consent could be inferred from the respondent's silence

Holding

The court inferred refusal and/or decline to give consent from the failure to respond to two demand letters

Reasoning

The applicant deponed that he sought consent through his advocates who wrote two demand letters annexed to the supporting affidavit, and the 1st respondent failed to respond. The court treated this silence as amounting to refusal or decline to give consent, but this finding did not save the application because the statutory appeal still lay.

p. 3
03

Whether the interested party was properly enjoined

Holding

The interested party contended she had no duty in issuing consents and was wrongly enjoined, but the application was dismissed on the exhaustion ground

Reasoning

The interested party stated she had no role in issuing or refusing consent, that being the preserve of the 1st respondent, and she did not object to the applicant being given consent over the boundary dispute. The court did not make a specific finding on her joinder, disposing of the matter instead on prematurity.

p. 2

Legal principles established

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  • Where a statute prescribes a clear procedure for redress of a grievance, that procedure must be strictly followed and exhausted before resort to judicial review remedies
  • A litigant must bring himself within the statutory framework before seeking remedies outside that statute

Court orders

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  1. 1.The application for an order of mandamus is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1 & 2
  • Law Reform ActSections 8 and 9
  • Land Adjudication ActSections 30(1), 30(3), 30(4), 29(3), 5

Cases cited (9)

  • Chief Constable of the North Wales Police vs Evans
    (1982) IWLR 1155
  • Commissioner of Lands vs Kunste Hotels Limited
    (1997) eKLR
  • Farmers Bus Service & Others vs The Transport Licensing Appeal Tribunal
    (1959) EA 779
  • Ndete vs Chairman Land Disputes Tribunal & Another
    (2002) IKLR 392
  • Jotham M. Gituma vs Florence Karema & another
    (2012) eKLR
  • Republic vs DCIO District Criminal Officer (DCIO) Busia District Exparte Manuel Otiangala
  • Speaker of National Assembly vs Karume
    (1992) KLR at page 425
  • Nartosa & Others vs Minister of Education for Westerncape & others
  • Abdalla Mangi Mohamed vs Lazarus & 5 others
    Mombasa petition case no. 18 of 2013 (2012) eKLR
Jurisdiction invoked
Order 53 rules 1 & 2 of the Civil Procedure Rules; sections 8 and 9 of the Law Reform Act (cap 26); section 30 of the Land Adjudication Act (cap 284)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Mutethia Mboroki v Land Adjudication & Settlement Officer, Buuri Sub-County & another; Catherine Ngiritu Marete (Interested Party) [2018] KEELC 122 (KLR)", Case Analysis (2018). Judicial Review Application (Order 53 Rules 1 & 2 CPR; Sections 8 & 9 Law Reform Act). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/122/eng@2018-12-07

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