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ELCDismissedJudicial Review (Notice of Motion dated 20th August, 2019) re Appeal No. 76 of 2019· [2019] KEELC 206 (KLR)

Gilbert Joseph Kabunjia v Land Adjudication and Settlement Officer Meru South & 3 othersl; County Government of Tharaka Nithi(Interested Party ) [2019] KEELC 206 (KLR)

High Court of Kenya (judicial review)
16 December 2019
5,962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a landowner's challenge to a ministerial land decision, confirming that Deputy County Commissioners can hear land appeals in Kenya.

What this practically means

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Executive summary

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The ex-parte applicant, Gilbert Joseph Kabunjia, sought an order of certiorari to quash the decision and award of 20th May 2019 made by Deputy County Commissioner M. O. Beja on behalf of the Cabinet Secretary, Ministry of Lands, in ministerial Appeal No. 76 of 2019 concerning Land Reference No. 2022, Kajuki/Kamutiria Adjudication Section, which the decision had declared public land held in trust by the County Government of Tharaka Nithi (the Interested Party). The applicant relied on seven grounds: lack of jurisdiction due to non-gazettement of the Deputy County Commissioner; being condemned unheard; the failure to consider the government surveyor's findings; erroneous findings on vacancy, grazing use, ancestral burials and a Safaricom mast lease; and the alleged instigation of a self-help group. The Respondents filed Grounds of Opposition; the Interested Party filed a replying affidavit and written submissions, arguing the officer was duly gazetted under Gazette Notice No. 6854, that judicial review addresses process not merits, and that the application lacked a statement under Order 53. The court, P. M. Njoroge J, held that judicial review concerns the integrity of the process rather than the merits; the gazettement ground was contradicted by the Gazette Notice; the applicant had robustly participated in the proceedings; and grounds 3-7 attacked the merits and were untenable. The application was dismissed, the stay order of 31st July 2019 was vacated, and costs were awarded to the Respondents and the Interested Party. Delivered at Chuka on 16th December 2019.

Key legal issues

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01

Jurisdiction of the Deputy County Commissioner to hear the ministerial appeal

Holding

The ground failed; Gazette Notice No. 6854 of 3rd October 2014 delegated the Minister's appellate powers to Deputy Commissioners, so the officer had jurisdiction.

Reasoning

The applicant asserted the Deputy County Commissioner was never gazetted. The Respondents and Interested Party produced Gazette Notice No. 6854 from the Kenya Gazette of 3rd October 2014 delegating powers to hear and determine appeals under section 29 of the Land Adjudication Act to Deputy Commissioners of all sub-counties except those in Nairobi City County. The court found the assertion of lack of jurisdiction to be false and dismissed the ground.

p. 8
02

Whether the applicant was condemned unheard

Holding

The ground lacked merit; the record showed the applicant robustly participated in the ministerial-level proceedings.

Reasoning

The court perused the ministerial proceedings and found that the applicant took part in the impugned process, contradicting his claim of being denied audience. Non-participation, which would engage the audi alteram partem rule, was not demonstrated.

p. 9
03

Whether merit-based grounds are cognizable in judicial review

Holding

Grounds 3-7, which challenged the factual merits of the decision, were not tenable in judicial review and were dismissed.

Reasoning

Judicial review addresses the fairness and legality of the decision-making process, not the sufficiency of evidence or correctness of findings. Grounds alleging the officer erred in evaluating the land claim went to merits and fell outside the scope of judicial review.

p. 9
04

Proper institution of the judicial review application (absence of statement)

Holding

The court noted the statement deficiency under Order 53 Rule 4(1) but, since leave had been granted, declined to dwell on whether leave was properly given and proceeded to the merits.

Reasoning

Order 53 Rule 4(1) mandates that no grounds or relief be relied on at the hearing except those in the statement, and the applicant did not controvert the assertion that no statement accompanied his leave application. However, since leave had already been granted by the court, revisiting the issue would amount to the court sitting in judgment on its own infraction, so the court moved to the substantive grounds.

p. 8

Legal principles established

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  • Judicial review concerns the integrity of the decision-making process, not the merits of the decision.
  • A delegation of ministerial powers under s.29 of the Land Adjudication Act to Deputy Commissioners by Gazette Notice No. 6854 of 3rd October 2014 confers jurisdiction on a Deputy County Commissioner to hear ministerial appeals.
  • The word 'shall' in Order 53 Rule 4(1) makes the statement accompanying a judicial review application crucial, and no grounds or relief may be relied on at the hearing except those set out in the statement.

Court orders

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  1. 1.The Judicial Review suit is dismissed
  2. 2.The order of stay of further proceedings and implementation of the impugned decision of the Land Adjudication and Settlement Officer granted on 31st July, 2019 is vacated
  3. 3.Costs are awarded to the Respondents and to the Interested Party

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)Section 29(1), 29(4)
  • Land Adjudication Act (Cap 284)Section 26
  • Land Adjudication Act (Cap 284)Section 3(1)(a)
  • Land Adjudication RegulationsRegulation 4(1)
  • Civil Procedure RulesOrder 53 Rules 1, 2, 3 and 4(1)
  • Law Reform Act
  • Constitution of KenyaArticle 62(1)(2)(3)

Cases cited (5)

  • Republic v Attorney General & another Exparte Munyokwang Kiyer & 3 others
    [2014] eKLR
  • Republic v The Honourable Attorney General, The District Commissioner Mbooni East and Benson Makumbi Masila; Ex-parte Applicant Onesmus Wambua Kasivo
    High Court Miscellaneous Cause No. 116 of 2013
  • Michael Mungai v The Hon Attorney General & Others
    Judicial Review Application No. 9 of 2015
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Mohamed Suleiman Shee & Bakari Omari Chala v Suleiman Omari Challa, Ali Omari Challa & Others
    ELC Suit No. 51 of 2017
Jurisdiction invoked
Judicial review under the Law Reform Act and Order 53 of the Civil Procedure Rules (certiorari to quash a ministerial decision under s.29 of the Land Adjudication Act, Cap 284)

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, "Gilbert Joseph Kabunjia v Land Adjudication and Settlement Officer Meru South & 3 othersl; County Government of Tharaka Nithi(Interested Party ) [2019] KEELC 206 (KLR)", Case Analysis (2019). Judicial Review (Notice of Motion dated 20th August, 2019) re Appeal No. 76 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/206/eng@2019-12-16

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