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ELCDismissedJR No. 61 of 2017 (Judicial Review Motion re A/R Objection Case No. 176)· [2018] KEELC 4742 (KLR)

Republic v District Land Adjudication and Settlement Officer Tigania East/West District Ex-parte Zaverio Mitheka [2018] KEELC 4742 (KLR)

Environment and Land Court
23 January 2018
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The court dismissed a challenge to a land adjudication decision in Tigania West because the challenger offered no evidence the deciding committee lacked quorum.

What this practically means

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Executive summary

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This was a judicial review motion in which the Exparte Applicant, Zaverio Mithika, sought orders of certiorari to quash a decision of the District Land Adjudication and Settlement Officer in A/R Objection Case No. 176 concerning Parcels Nos. 1196, 1249 and 2286 in Tigania West, delivered on 25.11.16 pursuant to remittal by the Court of Appeal in Civil Appeal No. 28 of 2015, and prohibition against its implementation. The Applicant contended the objection proceedings were unlawful because, contrary to Section 9 of the Land Consolidation Act (Cap 283) requiring a Committee of not less than 25 members, no properly constituted Committee sat. The Interested Party, Peter Kimandiu, and the Respondent maintained a 21-member Committee sat, that the Act does not require Committee members' names to be recorded, that the decision was implemented in January 2017, and that the Applicant never appealed to the Minister. The court framed two issues: whether the Committee in A/R Objection 176 was properly constituted, and whether the judicial review orders should issue. It found the unrebuted affidavits of two Committee members established a properly constituted Committee, while criticizing the Respondent's failure to record Committee particulars as poor practice that had consumed eight years of litigation. The court further held that judicial review remedies are discretionary, and since the decision had already been implemented in January 2017 and remittal would return the dispute to the Respondent a third time, the orders were not merited. The Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Committee in A/R Objection 176 was properly constituted under Section 9 of the Land Consolidation Act

Holding

The court found the Committee was properly constituted, relying on unrebuted affidavits of two Committee members sworn of a 21-member Committee

Reasoning

Section 9 of the Land Consolidation Act requires a Committee of not less than 25 members and Section 14(2)(a) sets quorum. The Act does not require Committee members' names to be recorded in proceedings. The Exparte Applicant merely alleged lack of quorum without stating the actual number of members. Unrebutted affidavits by Jacob Baariu and Joseph Mutwiri confirmed a 21-member Committee sat, so the objection failed on the evidence.

p. 4
02

Whether the judicial review orders of certiorari and prohibition should issue

Holding

The Motion was dismissed: the decision had been implemented in January 2017 and the court declined, in its discretion, to remit the decades-old dispute back to the Respondent a third time

Reasoning

Judicial review orders are discretionary and must be exercised judiciously. The dispute had been in litigation for decades and had already reached the Court of Appeal once. The decision in A/R Case No. 176 had been implemented in January 2017, a fact known to the Exparte Applicant who remained silent on it. Allowing the motion would send the dispute back to the Respondent for a third time.

p. 5
03

Whether the Respondent complied with the law by failing to record Committee members' names in the proceedings

Holding

The court criticized the Respondent's failure to record the Committee's particulars as poor practice, though it did not invalidate the proceedings

Reasoning

While the Act does not require names of Committee members to be recorded, the court found the omission made it impossible to verify compliance with composition and quorum requirements, and occasioned eight years of litigation. The court admonished District Land Adjudication and Settlement Officers to capture such pertinent information in future proceedings.

p. 4

Legal principles established

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  • Although the Land Consolidation Act does not require Committee members' names to be recorded in proceedings, recording them is good practice demonstrating compliance with quorum requirements
  • A party asserting lack of quorum must adduce evidence of the actual number of Committee members; unrebuted sworn averments of a properly constituted Committee will be believed

Court orders

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  1. 1.Judicial Review Motion dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Consolidation Act, Cap 283Section 9(1)
  • Land Consolidation Act, Cap 283Section 14(2)(a)
  • Land Adjudication Actnull

Cases cited (5)

  • Republic vs. Tigania East and West District Land Adjudication and Settlement Officer and Attorney General, Exparte Josphat Muchui
    (2014) eKLR
  • Catherine Muthoni Kiriungi & Another Vs The Chairman, Land Adjudication and Settlement Officer
    Meru H.C Misc. JR 86 of 2010
  • Stanley Thiaine Mbui & Another Vs. The Land Adjudication Officer, Tigania West & Another
    Meru H.C ELC Misc. Appl. No. 93 of 2010 (JR)
  • Republic Vs Kajiado Lands Disputes Tribunal & Another Ex-Parte Samuel S. Muyaa & 2 Others
    (2005) E KLR
  • Stanley Thiane Mbui & Another vs. Land Adjudication Officer, Tigania West District & Another
    (2014) E KLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under the Law Reform Act and order of leave granted on 07.02.17 for certiorari and prohibition (judicial review of Land Adjudication Officer's decision under the Land Consolidation Act, Cap 283)

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 Tigania East/West District Ex-parte Zaverio Mitheka [2018] KEELC 4742 (KLR)", Case Analysis (2018). JR No. 61 of 2017 (Judicial Review Motion re A/R Objection Case No. 176). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4742/eng@2018-01-23

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