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ELCDismissedELC JR No. 52 of 2014 (formerly Kerugoya JR No. 4 of 2014)· [2018] KEELC 4612 (KLR)

Stephen Menyi Kithaka v Minister for Lands & 2 others [2018] KEELC 4612 (KLR)

Environment and Land Court of Kenya
8 February 2018
3,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court threw out a land dispute challenge because the applicant lacked authority to sue for a deceased relative and filed late.

What this practically means

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Executive summary

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This judicial review application sought orders of certiorari to quash the Minister for Lands' decision of 31 July 2013 in Land Appeal Case No. 129 of 1991, which overturned earlier Land Adjudication Committee and objection decisions favouring the applicant, and an order of prohibition against the Land Registrar and the 2nd interested party from alienating, demarcating, transferring or registering parcel 54. The court framed six issues. On capacity, it held that the applicant, who sued as a 'representative' of the deceased applicant Ngari Kithaka without any grant of letters of administration or probate, had no legal capacity under section 3 of the Law of Succession Act, following Trouistik International Union v Jane Mbeyu; the application was therefore incompetent. On timeliness, the substantive notice of motion was filed 26 days after leave was granted on 31 January 2014, exceeding the 21 days allowed; under Order 50 of the Civil Procedure Rules weekends are not excluded, and no extension of time was sought, so the application was time barred. On the merits of the review grounds, the court found no breach of natural justice - the applicant testified, cross-examined witnesses and the District Commissioner visited the site - and no ultra vires, bias, illegality or Wednesbury unreasonableness in the Minister's decision. The Minister, deciding a final appeal under section 29 of the Land Adjudication Act, was not bound by earlier adjudication decisions and gave reasons in his findings. The court concluded the application was an appeal disguised as judicial review, dismissed the notice of motion and awarded costs to the 2nd interested party.

Key legal issues

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01

Legal capacity to sue on behalf of a deceased person

Holding

The Applicant, not being an executor or administrator, had no legal capacity; the application was incompetent

Reasoning

The Applicant instituted proceedings as a self-described 'representative' of a deceased person. Citing section 3 of the Law of Succession Act and Trouistik International Union v Jane Mbeyu, the court held that only personal representatives may agitate a deceased's cause. Prior representation of the deceased in other fora without objection conferred no legal capacity. The objection had been raised in 2014 and was never rebutted.

p. 4
02

Timeliness of the substantive notice of motion

Holding

Filed out of time (26 days after grant of leave, not 21) and no extension sought; application time-barred

Reasoning

Leave was granted on 31 January 2014 with 21 days to file the substantive motion, expiring about 21 February 2014. The motion dated 18 February was filed 26 February. Order 50 rules 2 and 3 of the Civil Procedure Rules exclude only Sundays, Christmas Day, Good Friday and public holidays for periods under six days; weekends generally count. No extension was sought in the four years the matter pended.

p. 5
03

Breach of rules of natural justice

Holding

No breach; the Applicant fully participated in the appeal proceedings and cross-examined witnesses

Reasoning

The record of proceedings before the District Commissioner, Mbeere North (hearing on delegated ministerial authority), showed the Applicant testified, cross-examined witnesses and participated fully. The District Commissioner even visited the site. Failure to win cannot found a natural-justice complaint in judicial review.

p. 5
04

Ultra vires, unreasonableness, bias and illegality of the Minister's decision

Holding

None established; the Minister was not bound by earlier committee and objection decisions and gave adequate reasons

Reasoning

The appeal was a final appeal under section 29 of the Land Adjudication Act, subject only to judicial review. No excess of power or illegality was shown; earlier decisions in the Applicant's favour did not bind the Minister, who could correct errors. Reasons for the decision were contained in the findings section. Applying Wednesbury unreasonableness, the reasons did not fall within that standard. The complaint was really about the merits.

p. 6

Legal principles established

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  • Only a legal representative (executor or administrator) of a deceased person has capacity to institute proceedings on the deceased's behalf
  • In computing a 21-day time limit under Order 53, weekends are not excluded; only days specifically excluded under Order 50 rule 2 are disregarded
  • Judicial review concerns the decision-making process, not the merits of the decision; a Minister's decision under section 29 of the Land Adjudication Act is a final appeal subject only to judicial review

Court orders

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  1. 1.The Applicant's notice of motion dated 18th February 2014 is dismissed
  2. 2.Costs of the application awarded to the 2nd interested party

Authorities

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Legislation

  • Law of Succession Actsection 3
  • Law of Succession Actsection 82(a) (referred to in Trouistik case extract)
  • Civil Procedure RulesOrder 53
  • Civil Procedure RulesOrder 50 rule 2
  • Civil Procedure RulesOrder 50 rule 3
  • Land Adjudication Actsection 29
  • Civil Procedure Actsection 27(1)

Cases cited (5)

  • Michael Mukhobi & 2 Others Vs Hezron Charles Lutta
    [2014] eKLR
  • Trouistik International Union and Ingrid Vs Jane Mbeyu & Another Civil Appeal No. 145 of 1990
    [1993] eKLR
  • Municipal Council of Mombasa Vs and Umoja Consultants Ltd Civil Appeal No. 185 of 2001
  • Associated Provincial Picture Houses Ltd Vs Wednesbury Corporation
    [1948] IKB 223
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules over a Minister's appeal decision under section 29 of the Land Adjudication Act

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, "Stephen Menyi Kithaka v Minister for Lands & 2 others [2018] KEELC 4612 (KLR)", Case Analysis (2018). ELC JR No. 52 of 2014 (formerly Kerugoya JR No. 4 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4612/eng@2018-02-08

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