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ELCPartially AllowedJudicial Review Case No. 4 of 2017

Teresa Kabirithu M’muketha v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3715 (KLR)

Environment and Land Court
18 April 2018
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a land adjudication officer's decision because the officer could not prove the required committee was involved in the hearing.

What this practically means

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Executive summary

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This is a first-instance judicial review decision of the Environment and Land Court at Meru in which the ex-parte applicant, Teresa Kabirithu, sought an order of certiorari to quash a decision of the Land Adjudication and Settlement Officer, Tigania East District, made on 22 November 2016 in objection proceedings concerning land parcel No. 4773, Karama Adjudication Section. She argued that the objection was heard without the aid of a committee as required by section 26 of the Land Consolidation Act (Cap 283), that the respondent failed to constitute a committee and appoint an executive officer under section 9, and that the respondent was biased and considered extraneous matters. The interested party opposed, contending the applicant lacked locus standi (no grant of letters of administration for her deceased husband's estate), that the objection was properly constituted, and that the evidence supported the decision. The court declined to decide ownership, restating that judicial review concerns the decision-making process, not the merits. The locus standi objection was rejected as an ambush raised only in submissions and, in any event, sections 13(1) and 13(4) of Cap 283 permit heirs and successors to appear without letters of administration. The bias allegations failed for want of evidence. However, the court found the respondent failed to demonstrate compliance with section 26, holding that the onus of showing compliance lay on the respondent. The motion was allowed on the ground of lack of a committee: certiorari issued quashing the decision, the matter was remitted for fresh objection proceedings in compliance with the law, and each party was ordered to bear their own costs. The judgment contains a material discrepancy between the objection number sought to be quashed and the one actually quashed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ex-parte applicant has locus standi, having no letters of administration for her deceased husband's estate
  2. 2.Whether the objection proceedings were conducted with the aid of a committee as required by section 26 of the Land Consolidation Act
  3. 3.Whether the respondent was biased and considered extraneous matters

Key legal issues

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01

Locus standi of the ex-parte applicant

Holding

The locus standi objection was rejected as it was raised for the first time in submissions and, in any event, the Land Consolidation Act allows heirs/successors to make claims without letters of administration.

Reasoning

The court noted the issue was not raised in the replying affidavit, making it an ambush violating Article 50(1). On the merits, section 13(1) permits any individual claiming a right or interest in land within an adjudication section to appear in person or by representative, and section 13(4) deems the appearance of one heir to be the appearance of all heirs. Claims under the Act may thus be made by successors of a deceased person, not necessarily legal representatives.

p. 3
02

Whether objection proceedings were conducted with the aid of a committee under section 26 of Cap 283

Holding

The motion succeeded on this ground: compliance with the mandatory requirement to consider the objection with the committee was not discernible from the proceedings.

Reasoning

Section 26 requires the Adjudication Officer to consider an objection with the Committee. While no law requires committee members to sign the record, the court held compliance must be discernible from the proceedings; the respondent failed to avail information on the composition, number or identity of the committee. The burden of proving compliance lay on the respondent, whose 'lackluster attitude' on compliance was deprecated.

p. 3
03

Allegations of bias and consideration of extraneous matters

Holding

Rejected - no evidence supported the allegations of bias or consideration of extraneous matters.

Reasoning

The court found parties were given a chance to tender testimony and were cross-examined, and a ground visit to the suit land was conducted. On this evidence the allegations of bias and arbitrariness failed.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • The onus of demonstrating compliance with the law in objection proceedings falls on the Adjudication Officer, not the objector
  • Raising a new ground (locus standi) at the stage of submissions is an ambush and a violation of the right to a fair trial

Court orders

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  1. 1.An order of Certiorari to remove and quash the Order/Decision made by the Land Adjudication and Settlement Officer Tigania East District on 22nd November 2016 in Objection No.1689 involving Land Reference No. 4773 Karama Adjudication Section
  2. 2.The matter remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law
  3. 3.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (order of certiorari), Land Consolidation Act (Cap 283), Article 50(1) of the Constitution referenced

Relief refused

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Costs of the suit against the respondent

Although costs were prayed for, the court directed each party to bear their own costs because the respondent was responsible for the impasse

p. 4

Costs

Each party to bear their own costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order of Certiorari is hereby issued to remove to this court for the purpose of being quashed the Order/Decision made by the Land Adjudication and settlement Officer Tigania East District on the 22nd November 2016 in Objection No.1689 involving Land Reference No. 4773 KARAMA ADJUDICATION SECTION.
p. 4Final orders - certiorari
The matter is remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law.
p. 4Final orders - remission
As respondent is responsible for the impasse, then each party is to bear their own costs of the suit.
p. 4Final orders - costs
The onus of demonstrating that there was compliance with the law fell upon the Respondent and not the Ex-parte Applicant.
p. 4Burden of proving compliance with section 26
Judicial Review is concerned with the decision making process and not the merits of the decision.
p. 2Scope of judicial review

Issues in the judgment

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material

Discrepancy between the objection number sought to be quashed (Objection No. 1756) in the motion and the objection actually quashed in the final orders (Objection No. 1689)

material

Discrepancy: paragraph 5 refers to objection case no. 1689 while the motion and its description concern objection no. 1756; the interested party in this suit is named Zakayo Mucheke M'thiringi for objection no. 1756, but the orders quash objection no. 1689

minor

Mislabelling of the ex-parte applicant's gender in the record

minor

Judgment delivery date rendered as 'THIS DAY OF 18th APRIL, 2018' with a typographical gap

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, "Teresa Kabirithu M’muketha v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3715 (KLR)", Case Analysis (2018). Judicial Review Case No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3715/eng@2018-04-18

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