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ELCDismissedJudicial Review No 13A of 2012· [2018] KEELC 1879 (KLR)

M'Igweta alias Jadiel Karitho M"Igweta v District Land Adjudication and Settlement Officer Tigania District; M'Ethambu (Interested Party) (Judicial Review 13A of 2012) [2018] KEELC 1879 (KLR)

Environment and Land Court
14 June 2018
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner challenging a land adjudication decision in Kenya lost because he skipped the required objection process and never got the adjudication officer's consent to sue.

What this practically means

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Executive summary

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The exparte applicant sought leave and thereafter filed a substantive notice of motion for orders of certiorari to quash a decision of the District Land Adjudication and Settlement Officer, Tigania District, made on 16th April 2012, which allegedly changed the location of land parcel no. 6209 Kianjai Adjudication on the map and on the ground, and prohibition against the officer from plotting the parcel elsewhere. The applicant claimed to have purchased the land from the interested party in 1987 and taken possession. The interested party opposed, asserting he had sold and instructed excision of a 20 ft x 100 ft portion from folio no. 1200, but the applicant fraudulently excised it from folio no. 5050 using a fraudulent letter. The court analysed the statutory framework under the Land Consolidation Act and Land Adjudication Act, which require written objections within sixty days of publication of the notice of completion of the adjudication register. The applicant neither showed that he lodged such an objection nor attached the impugned decision or its proceedings, making process review impossible. Further, the court held that the applicant was required to obtain the adjudication officer's consent under section 8 read with section 30 before instituting proceedings over land under adjudication, and did not do so. Applying settled principles that judicial review concerns process and not merits, the court dismissed the application with costs.

Key legal issues

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01

Exhaustion of statutory objection mechanism

Holding

The exparte applicant failed to demonstrate that he lodged a written objection with the adjudication officer within sixty days as required by the Land Adjudication Act and Land Consolidation Act

Reasoning

Sections 17 and 26 of the respective statutes require any person named in or affected by the adjudication register who considers it incorrect or incomplete to object in writing within sixty days of publication of the notice of completion. The applicant did not show he expressed his grievance to the adjudication officer in writing within that period, nor in what respect the register was incorrect or incomplete.

p. 3
02

Consent required to institute proceedings over land under adjudication

Holding

It was imperative for the exparte applicant to seek and obtain the adjudication officer's consent under section 8 read with section 30 before instituting proceedings, which he did not

Reasoning

The subject matter is a parcel of land under adjudication. The Land Consolidation Act and Land Adjudication Act require consent of the adjudication officer before instituting court proceedings touching on land under adjudication. The applicant did not attach a copy of such consent, rendering the application fatally defective.

p. 4
03

Scope of judicial review under Article 165(6)

Holding

Judicial review is concerned with process, not merit review of the decision

Reasoning

The court, citing Isack Osman v IEBC and Municipal Council of Mombasa v Republic, held that review under Article 165(6) supervisory jurisdiction examines whether the decision-maker had jurisdiction, whether affected persons were heard, and whether relevant matters were considered - not the merits. Without the impugned decision and its proceedings, the court could not make that determination.

p. 3

Legal principles established

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  • Judicial review concerns itself with the decision-making process and not the merits of the decision
  • A party aggrieved by an adjudication register must lodge an objection in writing within sixty days of publication of the notice of completion

Court orders

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  1. 1.The exparte applicant's substantive notice of motion is dismissed
  2. 2.Costs awarded to the respondent/interested party

Authorities

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Legislation

  • Land Consolidation Actsections 16, 17, 26, 8, 30
  • Land Adjudication Actsections 25, 26, 8, 30
  • Constitution of KenyaArticles 165(6), 47

Cases cited (2)

  • Isack Osman vs. IEBC & others
    Civil Appeal No. 180 of 2013
  • Municipal Council of Mombasa Vs Republic & Umoja Consultant Ltd
    Civil Appeal No. 185 of 2001
Jurisdiction invoked
Supervisory jurisdiction of the High Court under Article 165(6) of the Constitution (judicial review of administrative action)

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, "M'Igweta alias Jadiel Karitho M"Igweta v District Land Adjudication and Settlement Officer Tigania District; M'Ethambu (Interested Party) (Judicial Review 13A of 2012) [2018] KEELC 1879 (KLR)", Case Analysis (2018). Judicial Review No 13A of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1879/eng@2018-06-14

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