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ELCPartially AllowedJudicial Review Miscellaneous Application (as stated in judgment; Notice of Motion dated 26th September 2018)· [2018] KEELC 502 (KLR)

Republic v Cabinet Secretary, Ministry of Lands & Settlement & Attorney General Exparte Njeru Mwathi Karomo; Andrew Muthomi (Interested Party) (Judicial Review 3 of 2018) [2018] KEELC 502 (KLR)

High Court of Kenya
11 December 2018
3,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed a land appeal decision because the wrong official heard it, confirming a decision made without jurisdiction is void.

What this practically means

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Executive summary

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The ex-parte applicant, Njeru Mwathi Karomo, a peasant farmer in Tharaka North Sub-County, sought judicial review by way of certiorari to quash the decision and award of 12th March 2018 in Appeal No. 186 of 2017 concerning parcel L.R. No. Irunduni Adjudication Section Parcel No. 1148. He had appealed under Section 29 of the Land Adjudication Act to the Cabinet Secretary, who delegated the hearing to the Deputy County Commissioner, Tharaka North Sub-County. However, the appeal was heard and determined by a District Officer, Mr V.A. Matsalla, who refused to hear the applicant's witnesses, declined to visit the locus in quo, awarded the 1.5 acres to the Interested Party, and refused to supply a copy of the award or proceedings. The applicant contended the District Officer lacked jurisdiction since the delegation was to the Deputy County Commissioner, and that the process was unfair. Only the applicant filed submissions; counsel for the Attorney General left the matter to the court. Relying on the Gerald Mbuuri Kabugu decision, Evans and Kunste Hotel, the court (P.M. Njorooge, J) held that jurisdiction is everything, that the District Officer had no jurisdiction to hear the appeal, and that the refusal to hear witnesses was a procedural impropriety. The applicant proved his case on a balance of probabilities. The court quashed the impugned proceedings and decision, ordered the appeal heard afresh by the Deputy County Commissioner, and awarded costs to the applicant against the Respondent only, declining costs against the Interested Party.

Key legal issues

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01

Jurisdiction of the delegated appeal authority

Holding

The District Officer lacked jurisdiction because the Cabinet Secretary's delegation was to the Deputy County Commissioner, not to him

Reasoning

Section 29(4) of the Land Adjudication Act permits the Minister to delegate powers to hear appeals to a public office specified by name in a Gazette notice. The delegation here was to the Deputy County Commissioner, Tharaka North Sub-County, yet the appeal was heard by the District Officer, Mr V.A. Matsalla, who was not gazetted for that purpose. The court applied its earlier decision in the Gerald Mbuuri Kabugu case and found the decision null and void for want of jurisdiction.

p. 4
02

Fairness of the decision-making process

Holding

The refusal to hear the applicant's witnesses and failure to visit the locus in quo amounted to procedural impropriety

Reasoning

Judicial review concerns the decision-making process, not the merits. The applicant attended with witnesses who were refused a hearing, and the District Officer declined a scene visit before hurriedly awarding the land. The court accepted that failure to hear the applicant's witnesses was unfair and a procedural impropriety warranting quashing of the decision.

p. 5
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Proved case on the evidence

Holding

The applicant proved his case on a balance of probabilities

Reasoning

The only party to file and exchange submissions was the ex-parte applicant; the respondent, through counsel for the Attorney General, left the matter to the court while complaining about recurring similar mistakes. The court found the three authorities cited relevant and good and concluded the applicant had proved his case to the requisite standard.

p. 5

Legal principles established

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  • Where the Minister delegates powers to hear appeals under Section 29(4) of the Land Adjudication Act to a named public office, an officer to whom no delegation was made lacks jurisdiction, and a decision made without jurisdiction is null and void
  • Jurisdiction is everything and goes to the very heart of a matter

Court orders

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  1. 1.The proceedings and the decision made by the District Officer, Mr V.A. Matsalla on behalf of the Cabinet Secretary in Appeal No. 186 of 2017 in relation to L.R. No. Irunduni Adjudication Section Parcel No. 1148 are brought to the court and forthwith quashed
  2. 2.The appeal be heard afresh by the Deputy County Commissioner, Tharaka North Sub-County, who has jurisdiction to hear the appeal on behalf of the Cabinet Secretary, and an order to that effect issued
  3. 3.Costs awarded to the ex-parte applicant against the Respondent

Authorities

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Legislation

  • Law Reform ActSections 8 & 9
  • Civil Procedure RulesOrder 53 Rule 1(2), Order 53 Rule 3(1)
  • Land Adjudication Act, Cap 284 Laws of KenyaSection 29 and Section 29(4)

Cases cited (3)

  • Republic v Cabinet Secretary, Ministry of Lands and Settlement & 2 others Ex-Parte Gerald Mbuuri Kabugu
    [2018] eKLR
  • Chief Constable of the North Wales Police v. Evans
    [1982] 1 WLR 1155
  • Commissioner Of Lands v Kunste Hotel Limited
    [1997] eKLR
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act and Order 53 Rule 3(1) 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 Cabinet Secretary, Ministry of Lands & Settlement & Attorney General Exparte Njeru Mwathi Karomo; Andrew Muthomi (Interested Party) (Judicial Review 3 of 2018) [2018] KEELC 502 (KLR)", Case Analysis (2018). Judicial Review Miscellaneous Application (as stated in judgment; Notice of Motion dated 26th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/502/eng@2018-12-11

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