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ELCDismissed· [2018] KEELC 2499 (KLR)

Joram Kaberia v District Land Adjudication and Settlement Officer Igembe South District & 2 others [2018] KEELC 2499 (KLR)

Environment and Land Court
22 June 2018
2,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A son who challenged a land adjudication decision more than six months late, and alone instead of with his co-administrator, lost his case and must pay costs.

What this practically means

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Executive summary

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The ex-parte applicant sought judicial review orders of prohibition and certiorari by a notice of motion dated 28/11/2012 to quash the A/R decision in adjudication objections Nos. 810, 811, 812, 813, 841, 815 and 2301 of Akirangondu 'A' Adjudication Section over parcels 1516, 5026, 5027, 5032, 5043, 5044 and 5276, made on 13/12/2011. He contended the respondents acted in excess of jurisdiction because the decision was communicated after his father's death, that the decision was ultra vires the Land Adjudication Act and rules of natural justice, and that he had developed the land. The interested party, the applicant's uncle, countered that the proceedings were conducted in the deceased's presence, that he followed due process, and that the motion was time-barred and incompetent. The court framed four issues. It found the decision was made on 13/12/2011, before the father died on 12/2/2012, in proceedings he willingly participated in, so late communication did not nullify it. The ultra vires ground failed for lack of evidence that registration occurred after death. The six-month limitation under section 9(3) of the Law Reform Act and Order 53 rule 2 had clearly elapsed, and following Rosaline Tubei the court upheld the time-bar objection, observing that leave granted ex-parte can be revisited at the substantive hearing. Relying on Raffaella Adiyakhiso Ntotoi and Order 31 rule 2, the court also found the proceedings incompetent as only one of two appointed administrators was enjoined. The court vacated the leave and stay orders and dismissed the motion with costs to the respondents and the interested parties.

Key legal issues

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01

Excess of jurisdiction due to late communication of the decision

Holding

Ground rejected; the decision was made on 13/12/2011, before the deceased died on 12/2/2012, and he had participated in the proceedings

Reasoning

The record showed the impugned decision was made on 13/12/2011 following proceedings on 26th May 2010 in which the deceased called a witness. No evidence showed delay in communication by the respondents. A decision made during the deceased's lifetime with his willing participation cannot be rendered null merely because it was communicated after his death.

p. 2
02

Ultra vires the Land Adjudication Act and natural justice

Holding

Ground dismissed; no evidence that registration was effected after the deceased's death so as to require letters of administration

Reasoning

The applicant contended the respondents administered the estate through the back door by registering the land in the interested party's name. However, there was no evidence of the date the registration was implemented, and none that the deceased had died before the change was effected, so the claim that letters of administration were needed for the change was unsupported.

p. 3
03

Time-bar under section 9(2) and 9(3) of the Law Reform Act and Order 53 rule 2

Holding

Objection upheld; proceedings commenced 9th November 2012, more than six months after the decision of 13th December 2011

Reasoning

The six-month limitation for certiorari had clearly elapsed. Although leave had been granted ex-parte and to operate as a stay, the leave stage is ex-parte and the grant can be revisited where good reason is shown. Following Rosaline Tubei, the court upheld the time-bar objection and vacated the leave and stay.

p. 3
04

Institution of proceedings by only one of two administrators

Holding

Proceedings incompetent; both administrators ought to have been enjoined under Order 31 rule 2

Reasoning

The grant showed the applicant was appointed alongside Rael Muontubetwe, who was not joined. The verifying affidavit did not state the applicant swore on behalf of the other administrator, nor was it known whether she was aware of the proceedings. Following Raffaella Adiyakhiso Ntotoi, a suit by administrators must be brought in their joint names.

p. 4

Legal principles established

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  • An application for certiorari must be made not later than six months after the date of the decision sought to be quashed, and leave granted ex-parte out of time can be revisited at the substantive hearing
  • Where a suit is commenced by trustees, executors or administrators, all of them must be enjoined as parties
  • Communication of a decision after a party's death does not render the decision null where the decision was made during the party's lifetime in proceedings he willingly participated in

Court orders

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  1. 1.Vacation of the orders of leave and stay granted on 9th November 2012
  2. 2.Dismissal of the notice of motion dated 28th November 2012
  3. 3.Costs to the respondents and the interested parties

Authorities

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Legislation

  • Land Adjudication Actnull
  • Law Reform Act Cap 26section 9(2) and 9(3)
  • Civil Procedure RulesOrder 53 rule 2
  • Civil Procedure RulesOrder 31 rule 2

Cases cited (3)

  • Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others
    [2014] eKLR
  • Raffaella Adiyakhiso Ntotoi V Robert Obrian Lenguro
    [2012] eKLR
  • The Attorney General Vs Kenya School Of Flying Ltd
    Civil Suit 215 Of 1999
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act Cap 26 and Order 53 of the Civil Procedure Rules

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, "Joram Kaberia v District Land Adjudication and Settlement Officer Igembe South District & 2 others [2018] KEELC 2499 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2499/eng@2018-06-22

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