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ELCAllowedMisc. Application (Judicial Review) — Notice of Motion dated 7th February 2017 (Chamber Summons dated 12th January 2017)· [2018] KEELC 213 (KLR)

Republic v Land Adjudication & Settlement Officer Tigania East; Kathio M’ Igweta (Interested Party) [2018] KEELC 213 (KLR)

Environment and Land Court of Kenya
7 December 2018
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a land objection decision because the adjudication officer ruled without the legally required committee present.

What this practically means

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Executive summary

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This was a judicial review application by way of notice of motion dated 7th February 2017, brought by the ex parte applicant seeking an order of certiorari to quash the decision of the land adjudication and settlement officer, Tigania East District, made on 22nd November 2016 in objection no. 19 concerning parcel no. 7484, Karama Adjudication Section, under the Land Consolidation Act, Cap 283. Leave had been granted on 13th January 2017 to operate as a stay of implementation of the decision. The parties agreed to dispose of the matter by affidavit evidence and written submissions. The applicant submitted that the respondent determined the objection without constituting a committee, acting ultra vires. The interested party countered that the decision was unbiased, that no contrary evidence had been tendered, and that section 26 does not prescribe a specific number of committee members to sign the proceedings. The respondent filed no submissions despite appearing for directions. Examining the coram of the objection proceedings, the court found no committee member present when the objection was determined. Section 26 mandates the officer to consider an objection with the committee. Sitting alone, the officer acted beyond his powers. The court held the proceedings and decision of 22nd November 2016 ultra vires and null and void ab initio, allowed the motion, issued certiorari quashing the decision, remitted the objection to the land adjudication and settlement office for determination in accordance with the law, and ordered each party to bear his own costs.

Key legal issues

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01

Whether the objection proceedings were properly constituted under section 26 of the Land Consolidation Act

Holding

They were not; the officer sat alone without the committee, rendering the proceedings and decision ultra vires and null and void ab initio.

Reasoning

The coram of the objection proceedings of 16th November 2016 showed only the parties, their representatives and witnesses, with no committee member present. Section 26 requires the adjudication officer to consider the matter with the committee. Determining the objection without the committee exceeded the officer's powers and vitiated the decision from inception.

p. 3
02

Scope of judicial review

Holding

Judicial review examines the decision-making process rather than the merits; the procedural defect disclosed on the face of the proceedings justified certiorari.

Reasoning

The court relied on the trite principle that review courts do not re-hear the merits. The objection proceedings, exhibited with the verifying affidavit, disclosed on their coram that no committee member attended, so the process itself was flawed. Merits of the land allocation were not re-opened; only the unlawful process was quashed and the objection remitted for lawful determination.

p. 2

Legal principles established

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  • An adjudication and settlement officer must sit with the committee when determining an objection under section 26 of the Land Consolidation Act; a determination made alone is ultra vires and void ab initio.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of certiorari issued to remove and quash the decision of the Land Adjudication and Settlement Officer Tigania East District made on 22nd November 2016 in objection no. 19 involving land registration no. 7484 Karama Adjudication Section
  2. 2.The said objection remitted back to the land adjudication and settlement office to be determined in accordance with the law
  3. 3.Each party to bear his own costs of the application
Jurisdiction invoked
Judicial review jurisdiction over the decision of the land adjudication and settlement officer (leave granted for certiorari; Land Consolidation Act Cap 283, section 26)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Land Adjudication & Settlement Officer Tigania East; Kathio M’ Igweta (Interested Party) [2018] KEELC 213 (KLR)", Case Analysis (2018). Misc. Application (Judicial Review) — Notice of Motion dated 7th February 2017 (Chamber Summons dated 12th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/213/eng@2018-12-07

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