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ELCDismissedJudicial Review Proceedings - Amended Notice of Motion dated 6th March, 2008 (number not stated in judgment)· [2018] KEELC 2848 (KLR)

Elias Micheni Mugo v Land Adjudication officer Meru South District & 2 others [2018] KEELC 2848 (KLR)

High Court of Kenya
27 June 2018
PNP. M. Njoroge
4,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Chuka refused to quash a land adjudication decision, confirming that people left out of land adjudication can still object under section 26.

What this practically means

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Executive summary

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This was a judicial review application by way of an amended Notice of Motion dated 6th March 2008, in which Elias Michemi Mugo, the ex-parte applicant, sought an order of certiorari to quash the decision of the Land Adjudication Officer, Mariani Adjudication Section, in Objection No. 640 delivered on 18th May 2006. That decision allowed an objection by Fredrick Mate M. Tura and Gilbert N. Jotham and ordered the sub-division of the applicant's parcel No. 858, awarding him 4.00 acres and the objectors 5.30 acres. The applicant argued that the Interested Parties lacked locus because they had not participated in the demarcation or adjudication process; that the objection was filed about 450 days out of time; that the officer exceeded jurisdiction by re-opening a certified adjudication and sub-dividing the parcel; that failure to record the language of proceedings breached natural justice; and that reference to other objections (Nos. 444 and 958) was irrational. The Interested Parties, whose submissions the respondent's counsel adopted, countered that judicial review is concerned with process, not merits, and that procedural infractions rendered the application incompetent. The court held that the Interested Parties were affected persons with locus under section 26 of the Land Adjudication Act; that the language omission did not invalidate the proceedings; that consulting other objections fell within section 26(2); and that the procedural objections were unsupported by evidence. The application for certiorari was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Locus standi of the Interested Parties to participate in the objection proceedings

Holding

The Interested Parties, as persons affected by the adjudication register whose ancestral land was involved, had locus under section 26 of the Land Adjudication Act, so the respondent did not act without jurisdiction.

Reasoning

Section 26 confers standing on any person named in or affected by the adjudication register who considers it incorrect or incomplete. The subject land was the Interested Parties' ancestral land, and they claimed they were minors in school during the adjudication process. Lack of participation at the demarcation or committee stages did not disqualify them; the applicant failed to show the objection was out of time.

p. 8
02

Language of the proceedings as a ground of invalidity

Holding

Failure of the adjudication officer to record the language spoken does not invalidate the proceedings where the applicant does not show he did not understand them and gives no evidence that interpretation was absent.

Reasoning

The court noted the applicant never complained that he failed to understand the proceedings, and it was not controverted that the parties participated in them. Natural justice requires a hearing in a language one understands, but the mere omission to record the language, without evidence of actual prejudice or absence of interpretation, is insufficient to vitiate the decision.

p. 8
03

Alleged irrationality in reference to other objections (Nos. 444 and 958)

Holding

The reference to other objections fell within the adjudication officer's statutory power under section 26(2) to make further consultations and inquiries, and did not amount to irrationality.

Reasoning

Section 26(2) empowers the adjudication officer, after such further consultation and inquiries as he thinks fit, to determine an objection. Consulting other objection findings to assist determination is squarely within that power. The court was therefore not persuaded that the respondent acted capriciously or irrationally in a way that would justify certiorari.

p. 8
04

Procedural infractions alleged against the judicial review application

Holding

Alleged lack of 24-hour notice, uncommissioned annexures, absence of a supporting affidavit and non-service did not, alone, warrant dismissal; no evidence proved non-service.

Reasoning

The Interested Parties produced no evidence that the respondent was not served. The grounds of opposition were a legitimate response alerting the court to procedural infractions and were not filed under Order 51 Rule 14(5), so the applicant's application to strike them out failed. The infractions did not, by themselves, dispose of the application.

p. 8

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A person named or affected by the adjudication register has locus to object under section 26 of the Land Adjudication Act even where they did not participate in the earlier adjudication process
  • Mere failure to record the language used in adjudication proceedings does not render them invalid absent evidence that interpretation did not take place
  • An adjudication officer may, under section 26(2) of the Land Adjudication Act, consult other objection findings as part of his 'further consultation and inquiries' in determining an objection
  • Other statutes cannot displace the provisions of the Law Reform Act upon which judicial review proceedings are anchored

Court orders

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  1. 1.The amended Notice of Motion dated 6th March 2008 seeking an order of certiorari to quash the decision of the adjudication officer in Objection No. 640 Mariani Adjudication Section delivered on 18th May 2006 is dismissed
  2. 2.Each party to bear their own costs (no order as to costs)

Authorities

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Legislation

  • Land Adjudication ActCap 284, sections 6, 7, 12(1), 12(2), 23, 24, 25(b), 25(c), 26, 26(2), 29
  • Law Reform Actsections 8 and 9
  • Civil Procedure RulesOrder 51 Rule 14(5), Order 52, Order 53, Order 53 Rule 3(1), Order 6 rule 13(1)
  • Oaths and Statutory Declarations ActCap 15
  • Penal CodeChapter XI, section 109
  • Constitution of Kenyaright to be tried in a language one understands (invoked in submissions)

Cases cited (3)

  • Republic Versus Communication Commission of Kenya and others ex-parte East Africa Television Networks Ltd
    [2001] KLR 82
  • James Gilo Versus Republic and 2 others
    CA NO. 133 of 2009 [2010] eKLR
  • Hilary Kipruto Bett Versus Director of Public Prosecutions and 2 Others
    Mombasa HCCC JR. No. 16 of 2016
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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Cite this brief

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Cite this brief

Caselaw, "Elias Micheni Mugo v Land Adjudication officer Meru South District & 2 others [2018] KEELC 2848 (KLR)", Case Analysis (2018). Judicial Review Proceedings - Amended Notice of Motion dated 6th March, 2008 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2848/eng@2018-06-27

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