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ELCDismissedELC JR 54 of 2014 (Formerly Kerugoya JR No. 1 of 2014)· [2018] KEELC 4667 (KLR)

In re Estate of John Karani Keberenge (Deceased) [2018] KEELC 4667 (KLR)

Environment and Land Court of Kenya
8 February 2018
3,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a judicial review application, transferred from Kerugoya (JR No. 1 of 2014) to the Environment and Land Court at Embu, in which Kithaka Ikuthi sought certiorari to quash the Minister for Lands' decision of 31st July 2013 in Land Appeal No. 120 of 1991, and prohibition against the Land Registrar Mbeere District and the 2nd interested party from processing parcel No. 170 pursuant to that decision. The Applicant contended the Minister acted ultra vires, unfairly, unreasonably, with bias and in breach of natural justice by overturning earlier adjudication committee and objection decisions in his favour without reasons. The 2nd interested party opposed, arguing lack of capacity to sue for a deceased person, that the application attacked the merits of the Minister's decision, and that all parties were heard. The Attorney General added that the motion was filed out of time. The court framed six issues and found against the Applicant on all: he had no legal capacity, not being an executor or administrator under the Law of Succession Act; the substantive motion filed 26 days after leave was out of time since weekends count within a 21-day period; the Applicant was fully heard in the appeal before the District Commissioner; and no evidence showed ultra vires action, bias or Wednesbury unreasonableness, the Minister not being bound by prior adjudication decisions. The court characterized the application as an appeal on the merits disguised as judicial review and dismissed the notice of motion dated 18th February 2014 with 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 was not an executor or administrator and therefore had no legal capacity; the application was incompetent.

Reasoning

The Applicant instituted proceedings on behalf of deceased persons, describing himself as a 'representative'. Under section 3 of the Law of Succession Act a personal representative is an executor or administrator, and section 82(a) vests causes of action of deceased persons in personal representatives alone. Prior representation in other fora without objection conferred no legal capacity. The application was therefore incompetent.

p. 4
02

Timeliness of filing the substantive notice of motion

Holding

The notice of motion filed 26 days after leave was granted was out of time; weekends are counted in a 21-day period.

Reasoning

Leave was granted on 31st January 2014 with 21 days to file the substantive motion. Order 50 rule 2 of the Civil Procedure Rules excludes holidays only where the limited time is less than six days, so weekends count in a 21-day period. The motion filed on 26th February 2014 was out of time and no extension of time was sought, rendering the application a non-starter.

p. 5
03

Alleged breach of rules of natural justice

Holding

No breach: the Applicant participated fully in the appeal proceedings, testified and cross-examined witnesses.

Reasoning

The record of the appeal before the District Commissioner Mbeere North showed the Applicant actively participated, gave testimony and cross-examined witnesses; the DC even visited the site. Losing the case despite participation is not a legitimate natural justice complaint in judicial review. The bias and unfairness grounds also failed for want of evidence.

p. 5
04

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

Holding

No ground established; the Minister was not bound by earlier adjudication decisions in the Applicant's favour and gave adequate reasons; the suit was a merits appeal disguised as judicial review.

Reasoning

The appeal lay under section 29 of the Land Adjudication Act, a final appeal subject only to judicial review. Nothing showed the Minister exceeded his powers; prior committee and objection decisions were not binding on him and he could correct them. The reasons in the 'findings' section did not amount to Wednesbury unreasonableness. The grievance was truly with the merits.

p. 6

Legal principles established

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  • Only a personal representative (executor or administrator) known to law may institute proceedings on behalf of a deceased person; prior de facto representation without objection confers no legal capacity.
  • In computing a 21-day time limit under Order 53, weekends are not excluded; only days excluded under Order 50 rule 2 for periods under six days are discounted.
  • Judicial review concerns the decision-making process, not the merits; an appeal to the Minister under section 29 of the Land Adjudication Act is final subject only to judicial review.

Court orders

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

Authorities

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Legislation

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

Cases cited (5)

  • Michael Mukhobi & 2 Others v Hezron Charles Lutta
    [2014] eKLR
  • Trouistik International Union and Ingrid v Jane Mbeyu & Another
    Civil Appeal No. 145 of 1990 [1993] eKLR
  • Municipal Council of Mombasa v Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Associated Provincial Picture Houses Ltd v Wednesbury Corporation
    [1948] IKB 223
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; former Kerugoya JR No. 1 of 2014 transferred to the Environment and Land Court at Embu

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, "In re Estate of John Karani Keberenge (Deceased) [2018] KEELC 4667 (KLR)", Case Analysis (2018). ELC JR 54 of 2014 (Formerly Kerugoya JR No. 1 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4667/eng@2018-02-08

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