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ELCAllowedJudicial Review Application (Order 53), Meru ELC· [2018] KEELC 257 (KLR)

Republic v Land Adjudication & Settlement Officer Tigania East Interested Party Moses Ng’ere Lithira: Exparte Francis Kamathia Mugambi [2018] KEELC 257 (KLR)

Environment and Land Court of Kenya
7 December 2018
1,139 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 quashed a land adjudication officer's decision because he ruled on a land objection without the required committee, meaning the process must start afresh.

What this practically means

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Executive summary

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This was a judicial review application brought by way of an ex-parte chamber summons under Order 53 rule 1 of the Civil Procedure Rules, seeking leave to apply for certiorari to quash the decision of the land adjudication and settlement officer, Tigania East, made on 14th November 2016 in Objection No. 4190 concerning land parcel No. 8631, Karama Adjudication Section. Leave was granted on 25th January 2017 to operate as a stay, and the substantive motion was subsequently filed under Order 53 rule 3 and sections 8 and 9 of the Law Reform Act. The Attorney General filed grounds of opposition, and the interested party opposed through written submissions, contending that a fully constituted committee had already deliberated and that the officer was merely implementing the committee's decision. The applicant argued that the matter was heard in the absence of the committee, contrary to section 26 of the Land Consolidation Act (Cap 283). The court perused the proceedings and observed that no committee member was present at the hearing of the objection. Holding that section 26(1) requires an objection to be considered by the adjudication officer with the committee, the court found the impugned decision was made without jurisdiction and was a nullity. The judicial review application was allowed: certiorari issued quashing the proceedings and decision, the dispute was remitted to the land adjudication and settlement officer for hearing and determination in accordance with the law, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the land adjudication and settlement officer could decide Objection No. 4190 sitting alone without the committee

Holding

The officer could not; the decision was made without jurisdiction and was a nullity.

Reasoning

The proceedings showed no committee member present; only the objector, his witness, the respondent and his witness appeared. Section 26(1) of the Land Consolidation Act requires that an objection be considered by the adjudication officer with the committee. The impugned decision of 14 November 2016 was therefore made without jurisdiction and was a nullity warranting certiorari.

p. 3
02

Scope of judicial review

Holding

Judicial review concerns the decision-making process, not the merits.

Reasoning

The court framed the challenge as directed at the process by which the objection was decided, namely whether the adjudication officer had jurisdiction to decide alone. Having found the process flawed for want of the committee, the court did not engage with the merits of the boundary dispute.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process and not the merits of the decision.
  • Under section 26(1) of the Land Consolidation Act, an objection must be considered by the adjudication officer with the committee; a decision made without the committee is without jurisdiction and a nullity.

Court orders

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  1. 1.An order of certiorari issued to remove to the Court the proceedings and decision of the land adjudication and settlement officer, Tigania East adjudication area, Karama adjudication section, made on 14th November 2016 in Objection No. 4190 of 2016 involving land parcel No. 8631, and quashing the same and any other orders made therein
  2. 2.The dispute remitted back to the land adjudication and settlement officer for hearing and determination in accordance with the applicable law
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 1
  • Civil Procedure RulesOrder 53 rule 3
  • Law Reform Act (Cap 26)Sections 8 and 9
  • Land Consolidation Act (Cap 283)Section 26(1)

Cases cited (5)

  • Misc. Application No. 235 of 2006 (Ruling)
  • Peter Kimandiu vs Land Adjudication Officer Tigania West District & Others
    Civil Appeal No. 28 of 2015
  • Henry M'Mwika M'Aramba vs District Land & Settlement Officer & Another
    JR Application No. 36 of 2012
  • Esther Muthoni Passaris vs Charles Kanyuga & 2 Others
    (2015) eKLR
  • In re Princess Edmond de Polignac
    E. 19/7 IKB 486
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 rules 1 and 3 of the Civil Procedure Rules (judicial review jurisdiction)

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 Interested Party Moses Ng’ere Lithira: Exparte Francis Kamathia Mugambi [2018] KEELC 257 (KLR)", Case Analysis (2018). Judicial Review Application (Order 53), Meru ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/257/eng@2018-12-07

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