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ELCPartially AllowedJudicial Review Case No. 6 of 2017

Teresa Kabirithu M’muketha v Teresa Kabirithu M’muketha & another [2018] KEELC 3751 (KLR)

Environment and Land Court
18 April 2018
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a land adjudication decision because the officer failed to involve the required local committee, and heirs can challenge such decisions without letters of administration.

What this practically means

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Executive summary

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This was a substantive judicial review motion by Teresa Kabirithu seeking 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 No. 1756 concerning parcel No. 4773 Karama Adjudication Section. It was one of three related suits (JR Nos. 4, 5 and 6 of 2017) brought by the same applicant. The applicant alleged that the objection was heard without the aid of a committee contrary to section 26 of the Land Consolidation Act (Cap 283), that the respondent failed to constitute a committee or appoint an executive officer under section 9, and that the respondent was biased and considered extraneous matters. The interested party, Zakayo Mucheke M'thiringi, opposed the motion, arguing lack of locus standi since the land was registered in the name of the applicant's deceased husband without letters of administration, and that the objection was properly constituted. The respondent filed no response or submissions. The court held that judicial review concerns the decision-making process, not the merits, and that it could not determine ownership of the land. It rejected the locus challenge as an ambush raised only in submissions and inconsistent with sections 13(1) and 13(4) of Cap 283, which permit heirs and successors to appear. It found no evidence of bias, but held that the respondent bore the burden of demonstrating compliance with section 26 and that the record did not disclose any committee. Allowing the motion, the court issued certiorari quashing the objection decision, remitted the matter to the respondent for fresh objection proceedings, and ordered each party to bear their own costs.

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 to bring the judicial review proceedings without letters of administration
  2. 2.Whether the respondent was biased and considered extraneous matters
  3. 3.Whether the objection proceedings were heard with the aid of a committee as required under section 26 of the Land Consolidation Act

Key legal issues

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01

Locus standi of the ex-parte applicant as widow without letters of administration

Holding

The objection raised at submissions stage was an ambush violating fair trial rights, and in any event the Land Consolidation Act allows successors to claim without being legal representatives.

Reasoning

The interested party raised locus only in submissions, not in the replying affidavit, which the court treated as an ambush contrary to Article 50(1) of the Constitution. On the merits, sections 13(1) and 13(4) of Cap 283 permit persons claiming rights or interests, including heirs and successors of deceased persons, to appear and be heard, so the absence of a grant of letters of administration was not fatal.

p. 2
02

Whether the objection proceedings were conducted with the aid of a committee as required by section 26 of Cap 283

Holding

The motion succeeded on the ground of lack of a committee; the respondent failed to demonstrate compliance.

Reasoning

Section 26 requires the Adjudication Officer to consider an objection with the committee. The record did not disclose the composition, number or participation of committee members, and compliance must be discernible from the proceedings. Since the onus of showing compliance lay on the respondent, the absence of any such information meant the statutory requirement was breached.

p. 3
03

Allegations of bias and consideration of extraneous matters

Holding

No evidence supported the allegations of bias; parties testified, were cross-examined and a ground visit was conducted.

Reasoning

The court examined the objection proceedings and found that all parties including the ex-parte applicant were present, gave testimony, were cross-examined, and that a ground visit to the suit land took place. The court could not act as an appellate body over the merits, and found nothing in the process to sustain the bias or extraneous-matters allegations.

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 upon the Adjudication Officer.
  • A claim under the Land Consolidation Act may be made by successors of a deceased person, not necessarily legal representatives.

Court orders

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  1. 1.An order of Certiorari to remove and quash the decision of the Land Adjudication and Settlement Officer Tigania East District made on 22 November 2016 in Objection No. 1756 involving Land Reference No. 4773 Karama Adjudication Section
  2. 2.The matter remitted back to the respondent for the objection proceedings to be conducted afresh 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 order 53 (Leave granted on 3.2.2017) in respect of a decision under the Land Consolidation Act (Cap 283)

Relief refused

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Costs against the respondent

The court ordered each party to bear own costs given the respondent's role in the impasse

p. 3

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.

Judicial Review is concerned with the decision making process, not the merits of the decision itself
p. 2Scope of judicial review
To advance this ground at the stage of submissions is actually an ambush. It is a violation of a right to a fair trial as stipulated under article 50 (1) of the constitution.
p. 2Locus standi / fair hearing
The onus of demonstrating that there was compliance with the law fell upon the Respondent and not the Ex-parte Applicant.
p. 3Burden of proving compliance with section 26
I therefore allow the motion on the following terms;
p. 3Disposition
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 22 nd November 2016 in Objection No. 1756 involving Land Reference No. 4773 KARAMA ADJUDICAITON SECTION.
p. 3Final orders - certiorari
As respondent is responsible for the impasse then each party is to bear their own costs of the suit.
p. 3Final orders - costs

Issues in the judgment

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minor

Documents in JR No. 5 and No. 6 of 2017 were mixed up; the verifying affidavit names the wrong interested party and the proceedings for objection case No. 1756 were not availed.

minor

The date of delivery line omits the month: 'THIS DAY OF 18th APRIL, 2018' reads awkwardly but the date is discernible.

minor

The ex-parte applicant is referred to as both 'she' and 'he' in successive passages.

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 Teresa Kabirithu M’muketha & another [2018] KEELC 3751 (KLR)", Case Analysis (2018). Judicial Review Case No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3751/eng@2018-04-18

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