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ELCDismissedJR Miscellaneous Application (Notice of Motion dated 26th February, 2018)· [2019] KEELC 1386 (KLR)

Republic v Attorney General; Gedion Mwathe Munyongi (Interested Party); Ex Parte Onesmus Mwaniki Nzambu [2019] KEELC 1386 (KLR)

High Court of Kenya
4 October 2019
OAO.A. Angote
1,084 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 confirmed that family members can pursue land adjudication disputes on behalf of deceased relatives without obtaining formal succession documents first.

What this practically means

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Executive summary

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The Ex-parte Applicant sought an order of certiorari to quash the decision of the Deputy County Commissioner, Kitui West Sub-County dated 11th July 2017 in Minister's Appeal Case Numbers 231 and 232 of 1999 over Land Parcel No. Mutonguni/Nzalae/3120, which awarded the land to Daniel Munyongi Kimama (deceased) in place of the Applicant. The Applicant contended that Daniel Munyongi Kimama died at the time of hearing the appeal, that the Interested Party Gedion Mwathe Munyongi was not a legal representative of the deceased's estate and was a stranger to the proceedings, rendering the proceedings a nullity. The Respondent countered that no evidence showed Gedion Mwathe was not the deceased's son, that the issue of representation was never raised during the appeal, and that Letters of Administration are not required in proceedings under the Land Adjudication Act. The court, O.A. Angote J, held that land under the adjudication process is communal or ancestral and does not form part of a deceased person's 'estate' under the Law of Succession Act; therefore the strict requirement of appointing legal representatives does not apply to disputes under the Land Adjudication Act. Following Odunga J's decision in Republic v District Commissioner Machakos ex parte Kakui Mutiso, and applying Section 13(5) of the Land Adjudication Act, the court held that successors in title may commence or continue proceedings before adjudicatory bodies. Since the Applicant and Interested Party were successors of the deceased original parties, the Deputy County Commissioner's proceedings were legally conducted and completed. The Notice of Motion was found unmeritorious and dismissed with costs.

Key legal issues

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01

Applicability of the Law of Succession Act to land adjudication disputes

Holding

The strict requirement of appointing legal representatives for a deceased's estate does not apply to disputes under the Land Adjudication Act

Reasoning

The Land Adjudication Act exists solely to ascertain rights and interests in land within adjudication areas, which are communal or ancestral until registration. Section 13(5) permits attendance by some successors to count for all. Land under adjudication is not 'free property' under the Law of Succession Act and thus cannot form part of a deceased's estate. The court adopted Odunga J's holding in Republic v District Commissioner Machakos ex parte Kakui Mutiso.

p. 2
02

Validity of the Deputy County Commissioner's proceedings where original parties were deceased

Holding

The proceedings were valid because the deceased parties were represented by their sons as successors in title

Reasoning

Section 13(5) of the Land Adjudication Act provides that where several persons claim as successors of a deceased person, attendance of one or more is taken as attendance of all unless the adjudication officer directs otherwise. The Interested Party never objected to the parties representing their deceased parents, and the issue of legal representation was never raised during the appeal proceedings.

p. 2

Legal principles established

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  • Land under adjudication is communal/ancestral and does not form part of the 'estate' of a deceased person under the Law of Succession Act; hence strict legal-representation requirements do not apply to Land Adjudication Act proceedings
  • Any successor in title to a deceased person's land under adjudication may commence or continue proceedings before adjudicatory bodies under the Land Adjudication Act

Court orders

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  1. 1.The Applicant's Notice of Motion dated 26th February, 2018 is dismissed
  2. 2.The Application is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActSection 13(5)
  • Land Adjudication ActPreamble
  • Law of Succession ActDefinitions of 'estate' and 'free property'

Cases cited (1)

  • Republic vs. District Commissioner Machakos ex parte Kakui Mutiso
    Nairobi High Court JR. Miscellaneous Application No. 304 of 2013
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of certiorari) under the Law Reform Act and Civil Procedure rules as invoked in the Notice of Motion

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 Attorney General; Gedion Mwathe Munyongi (Interested Party); Ex Parte Onesmus Mwaniki Nzambu [2019] KEELC 1386 (KLR)", Case Analysis (2019). JR Miscellaneous Application (Notice of Motion dated 26th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1386/eng@2019-10-04

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