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ELCDismissedNot stated in judgment· [2018] KEELC 3346 (KLR)

Japheth Micubu Ntoburi (Suing as Legal Representative of Ntoburi Ithibutu) & another v Lands Adjudication and Settlement, Officer Igembe & 8 others [2018] KEELC 3346 (KLR)

Environment and Land Court
16 May 2018
LMLucy N. Mbugua
1,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court dismissed landowners' bid to force correction of their title acreages, ruling that disputed land facts must be proved in a proper trial, not through judicial review.

What this practically means

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Executive summary

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The ex-parte applicants, Japhet Micubu Ntoburi and Henry Kobia Kubai, obtained leave on 18.8.2016 to bring Judicial Review proceedings seeking an order of mandamus to compel the Respondents to correct the acreage of land parcels L.R. Nos. Ithima/Antuambui/2406, 2424 and 5157. They alleged that the acreages in their title deeds differed from the adjudication register, that parcel 5157 was land-locked with no access road, and that the interested parties' parcels had gained land at their expense. The interested parties (3rd, 5th and 6th) replied that they had occupied their parcels since 1992, that the applicants had had an opportunity to object during adjudication, that the applicants' parcels were originally one parcel belonging to their grandfather which was subdivided among the family, and that the applicants' records were unclear. The Respondent filed grounds of opposition, contending the suit was defective and that judicial review concerns the decision-making process, not the merits. The court found the facts hotly disputed: the sketch maps were of unexplained origin, the adjudication records produced did not clearly show acreages, the record for parcel 2424 was missing from the supporting affidavit, objection proceedings in the adjudication process were not availed, the applicants' annexures were in disarray, and the position of the 4th interested party (deceased) and of Kubai Baimuku was unexplained. Holding that evidence would need to be adduced at a trial, the court found the orders unmerited and dismissed the Judicial Review motion with costs to the 3rd, 5th and 6th interested parties and the Respondent.

Key legal issues

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01

Whether judicial review is the proper forum where facts are disputed

Holding

It is not; disputed facts such as alleged reduction of acreage and a land-locked parcel require evidence at a trial, and the sketch maps could not be resolved on judicial review

Reasoning

The court found the applicants' and interested parties' sketch maps identical but of unexplained origin, and the parties' accounts of the acreages contradictory. The adjudication records produced did not clearly show acreages, making it impossible to find that titles were reduced. Rectification of the sketch map and the access road question would require witnesses at trial, so the Judicial Review motion was the wrong vehicle.

p. 3
02

Whether the applicants proved that their acreages were reduced upon issuance of titles

Holding

They did not; the search certificates showed the titled acreages but the adjudication records were unclear and, for parcel 2424, entirely absent from the supporting affidavit

Reasoning

The search certificates clearly indicated acreages of 0.20 ha, 0.18 ha and 0.22 ha for the three parcels, but the adjudication records annexed (HK8–HK10) contained figures the court could not interpret, and the record for parcel 2424 was missing from the supporting affidavit. The court therefore could not make a finding that acreages were reduced when titles were issued.

p. 3

Legal principles established

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  • Judicial review proceedings are not the proper forum for resolving disputed factual questions requiring evidentiary trial, such as contested acreages and access roads

Court orders

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  1. 1.The Judicial Review motion is dismissed
  2. 2.Costs to the 3rd, 5th and 6th interested parties and the Respondent

Authorities

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Legislation

  • Land Registration ActNot specified
  • Land Consolidation Actcap 283 laws of Kenya
  • Land Adjudication Actcap 284
Jurisdiction invoked
Judicial review jurisdiction (order of mandamus) under Order 53 of the Civil Procedure Rules following leave granted on 18.8.2016

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, "Japheth Micubu Ntoburi (Suing as Legal Representative of Ntoburi Ithibutu) & another v Lands Adjudication and Settlement, Officer Igembe & 8 others [2018] KEELC 3346 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3346/eng@2018-05-16

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