Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC JR No. 51 of 2014 (Formerly Kerugoya JR No. 3 of 2014)· [2018] KEELC 4613 (KLR)

Republic v Minister for Lands & 2 others Ex- parte Kariuki Ngari (Deceased) represented by Venceslao Nthiga [2018] KEELC 4613 (KLR)

Environment and Land Court of Kenya
8 February 2018
3,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a judicial review challenge to a Minister's land decision because the applicant lacked authority to sue for a deceased person and filed late.

What this practically means

#

Executive summary

#
The Applicant sought leave and thereafter filed a substantive notice of motion dated 18th February 2014 for orders of certiorari to quash the Minister's decision in Land Appeal Case No. 127 of 1991 delivered on 31st July 2013, and prohibition barring the Land Registrar Mbeere District and the 2nd interested party from alienating, demarcating, transferring or registering parcel No. 124. The Applicant, acting for deceased parties on both sides of the dispute, alleged the Minister's decision was ultra vires, biased, unreasonable, illegal and in breach of natural justice because it overturned earlier Land Adjudication Committee and objection decisions in his favour without reasons. The 2nd interested party opposed, challenging the Applicant's legal capacity and contending the application attacked the merits of the Minister's decision; the Attorney General filed grounds of opposition to similar effect. The court framed six issues. It held that the Applicant, not being an executor or administrator, had no legal capacity to sue on behalf of a deceased person and the application was incompetent; that the substantive motion filed about 26 days after leave was out of time since weekends count under Order 50, and no extension was sought; that the Applicant fully participated in the appeal before the District Commissioner, so natural justice was not breached; and that the Minister, whose appeal decision under section 29 of the Land Adjudication Act is final subject only to judicial review, gave reasons and acted within power. The complaint was in substance an appeal disguised as judicial review. The motion was dismissed with costs to the 2nd interested party.

Key legal issues

#
01

Legal capacity to sue on behalf of a deceased person

Holding

The Applicant, not being an executor or administrator, had no legal capacity and the judicial review application was incompetent.

Reasoning

Proceedings on behalf of a deceased person require legal authority. Under section 3 of the Law of Succession Act a personal representative is an executor or administrator. The Applicant described himself only as a 'representative' and never demonstrated that he held a grant. Prior unobjected representation in other fora could not confer capacity. The objection was raised as early as 13th June 2014 yet never cured.

p. 5
02

Timeliness of the substantive notice of motion

Holding

The notice of motion filed 26th February 2014, about 26 days after leave granted on 31st January 2014, was out of time and no extension was sought.

Reasoning

Order 50 rules 2 and 3 of the Civil Procedure Rules exclude only Sundays, Christmas Day, Good Friday and public holidays from computation, not weekends generally. The 21 days granted expired on or about 21st February 2014. The Applicant's argument that only working days count was rejected, and no extension of time was ever obtained during the four years the matter pended.

p. 5
03

Breach of rules of natural justice

Holding

No breach was established; the Applicant participated fully in the appeal proceedings before the District Commissioner, including cross-examining witnesses.

Reasoning

The record showed the Applicant actively participated in the proceedings before the District Commissioner Mbeere North, who even visited the site. Being heard but losing does not amount to a natural justice violation; dissatisfaction with the outcome is not a legitimate judicial review complaint.

p. 5
04

Ultra vires, unreasonableness, bias and illegality

Holding

None of these grounds was established; the Minister's decision under section 29 of the Land Adjudication Act was within power, reasoned and not Wednesbury unreasonable.

Reasoning

The Minister was not bound by earlier adjudication decisions in the Applicant's favour and was entitled to correct them if erroneous. Reasons were contained in the 'findings' section of the proceedings and did not meet the Wednesbury threshold of outrageous defiance of logic. The complaint was in substance an attack on the merits - an appeal disguised as judicial review.

p. 6

Legal principles established

#
  • Only a legal representative (executor or administrator) under the Law of Succession Act may bring proceedings on behalf of a deceased person; de facto representation in other fora confers no legal capacity.
  • In computing a 21-day filing period, weekends and ordinary days are counted; only days excluded by Order 50 rule 2 are left out.
  • Judicial review concerns the decision-making process, not the merits of the decision; the court should not act as a court of appeal over the decision maker.

Court orders

#
  1. 1.The notice of motion dated 18th February 2014 is dismissed with costs to the 2nd interested party

Authorities

#

Legislation

  • Law of Succession Act (Cap 160)section 3; section 82(a) as referenced in Trouistik
  • Civil Procedure RulesOrder 53; Order 50 rules 2 and 3
  • Civil Procedure Act (Cap 21)section 27(1)
  • Land Adjudication Actsection 29

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 of the High Court (ELC) under Order 53 of the Civil Procedure Rules; matter concerns appeal to the Minister under section 29 of the Land Adjudication Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Minister for Lands & 2 others Ex- parte Kariuki Ngari (Deceased) represented by Venceslao Nthiga [2018] KEELC 4613 (KLR)", Case Analysis (2018). ELC JR No. 51 of 2014 (Formerly Kerugoya JR No. 3 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4613/eng@2018-02-08

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