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ELCDismissedJudicial Review application (Notice of Motion dated 16.12.2013)· [2018] KEELC 4516 (KLR)

Republic v District Land Adjudication and Settlement officer Meru South District & 6 others Exparte Njeru Ntharano [2018] KEELC 4516 (KLR)

High Court of Kenya
15 February 2018
5,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a bid to overturn land adjudication decisions because the applicant skipped the statutory appeal process and filed parallel court proceedings.

What this practically means

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Executive summary

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This was a judicial review application by way of Notice of Motion dated 16.12.2013, brought under Order 53 Rule 3 of the Civil Procedure Rules, in which the ex-parte applicant sought an order of certiorari to quash the decision of the 1st respondent (the Land Adjudication Officer, Meru South District) dated 19.9.2013 in eighteen objection cases concerning land parcels in Kamwimbi Adjudication Section, plus costs. The applicant alleged that the objections were heard by an officer other than the one allocated (one Sarah rather than Muchiri), in his absence, without the aid of a committee, and with bias, in breach of natural justice and Article 50(1). The respondents maintained that the officer followed Cap 284, that the committee's role under section 20(b) is advisory, and that the applicant's sons represented him. The interested parties argued the application should fail because the applicant had allegedly died before the impugned hearing, and that he had failed to exhaust statutory remedies, including an appeal to the minister. The court framed a single issue: whether the applicant demonstrated that the orders sought were merited. It held that the officer had jurisdiction, the proceedings complied with the law, bias was not proved, the applicant exhibited a veneer of forum shopping given pending appeals, and the question of the applicant's death was unclear. The application was dismissed with costs awarded to the respondents and the interested parties.

Key legal issues

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01

Whether the 1st respondent acted without jurisdiction by hearing objections without the aid of a committee

Holding

The court found the proceedings were lawfully conducted and the officer had the requisite authority and jurisdiction.

Reasoning

The respondent's replying affidavit asserted the officer adhered to Cap 284, that section 20(b) makes the committee advisory, and that sections 10 and 11 vest power in the adjudication officer. The 2nd and 3rd interested parties showed the Arbitration Board was constituted with committee members. The court preferred these accounts over the applicant's uncorroborated assertions.

p. 12
02

Whether the applicant was denied natural justice and the officer was biased

Holding

Bias and denial of fair hearing were not demonstrated.

Reasoning

The court found the applicant had not proved that the 1st respondent evinced bias. The respondents and interested parties asserted that the applicant's sons represented him and called witnesses. Allegations against officer Sarah were not accepted as established.

p. 12
03

Whether the application was premature for failure to exhaust statutory remedies

Holding

The court agreed with the respondents that a veneer of forum shopping was evinced.

Reasoning

The respondent's affidavit showed pending appeals before the minister were not controverted. The court held judicial review applicants in land adjudication matters should exhaust statutory remedies, and parallel processes amount to forum shopping.

p. 12
04

Whether the exparte applicant was alive when the application was filed

Holding

The court found the issue did not come out clearly but noted a dead person cannot file proceedings.

Reasoning

The 1st, 4th and 5th interested parties claimed the applicant died before the DLASO hearing; the 3rd interested party's affidavit, relied on by the applicant, denied this. The court left the matter unresolved but pointed to substitution remedies.

p. 12

Legal principles established

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  • In land adjudication matters, statutory remedies should be exhausted before resorting to judicial review; parallel proceedings amount to forum shopping.
  • A dead person cannot file judicial proceedings; a deceased's estate must be represented through substitution.

Court orders

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  1. 1.This application is dismissed
  2. 2.Costs are awarded to the 2 respondents and to the 5 interested parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3
  • Land Adjudication Act (Cap 284, Laws of Kenya)Sections 10, 11, 20(b)
  • Constitution of Kenya 2010Article 50(1)

Cases cited (4)

  • Peter Kimandiu vs. Land Adjudication Officer, Tigania West District & 4 others
    (2016) eKLR
  • Republic vs. District Land Adjudication & Settlement Officer, Imenti South District, Ex-parte Murianki Ncurai & 9 others
    (2016) eKLR
  • Republic vs. Mount Kenya University & Another
    [2017] eKLR
  • Kimachia Farmers Co-op Society v. Land Adjudication Officer Tigania West & Another
    (2016) eKLR
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules (judicial review)

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, "Republic v District Land Adjudication and Settlement officer Meru South District & 6 others Exparte Njeru Ntharano [2018] KEELC 4516 (KLR)", Case Analysis (2018). Judicial Review application (Notice of Motion dated 16.12.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4516/eng@2018-02-15

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