Teresa Kabirithu M’muketha v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3715 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex-parte applicant has locus standi, having no letters of administration for her deceased husband's estate
- 2.Whether the objection proceedings were conducted with the aid of a committee as required by section 26 of the Land Consolidation Act
- 3.Whether the respondent was biased and considered extraneous matters
Key legal issues
#Locus standi of the ex-parte applicant
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.
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.
Whether objection proceedings were conducted with the aid of a committee under section 26 of Cap 283
The motion succeeded on this ground: compliance with the mandatory requirement to consider the objection with the committee was not discernible from the proceedings.
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.
Allegations of bias and consideration of extraneous matters
Rejected - no evidence supported the allegations of bias or consideration of extraneous matters.
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.
Legal principles established
#- 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
#- 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.The matter remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law
- 3.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Each party to bear their own costs of the suit
Quotable passages
#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.
The matter is remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law.
As respondent is responsible for the impasse, then each party is to bear their own costs of the suit.
The onus of demonstrating that there was compliance with the law fell upon the Respondent and not the Ex-parte Applicant.
Judicial Review is concerned with the decision making process and not the merits of the decision.
Issues in the judgment
#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)
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
Mislabelling of the ex-parte applicant's gender in the record
Judgment delivery date rendered as 'THIS DAY OF 18th APRIL, 2018' with a typographical gap
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.