Republic v District Land Adjudication and Settlement Officer Tigania East/West District Ex-parte Zaverio Mitheka [2018] KEELC 4742 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Committee in A/R Objection 176 was properly constituted under Section 9 of the Land Consolidation Act
The court found the Committee was properly constituted, relying on unrebuted affidavits of two Committee members sworn of a 21-member Committee
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.
Whether the judicial review orders of certiorari and prohibition should issue
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
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.
Whether the Respondent complied with the law by failing to record Committee members' names in the proceedings
The court criticized the Respondent's failure to record the Committee's particulars as poor practice, though it did not invalidate the proceedings
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.
Legal principles established
#- 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
#- 1.Judicial Review Motion dismissed
- 2.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.