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ELCDismissedJudicial Review (Chamber Summons dated 9th August 2019)· [2019] KEELC 1616 (KLR)

Republic v Land Adjudication Officer, Mariani Adjudication Section Exparte Benson Nchunge Kujoga; Desiderio Nkonge Kirigu (Interested Party) [2019] KEELC 1616 (KLR)

Environment and Land Court of Kenya at Chuka
2 October 2019
5,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who simply disagreed with an adjudication officer's decision lost his judicial review bid because he never used the available appeal channels.

What this practically means

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Executive summary

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The applicant, Benson Nchunge Kujoga, moved the Environment and Land Court at Chuka by Chamber Summons dated 9th August 2019 under Order 53 Rules 1 and 2 of the Civil Procedure Rules, seeking leave to apply for an order of certiorari to quash the decision of the Land Adjudication Officer, Mariani Adjudication Section, delivered on 29th April 2019 in objection No. 1128 concerning Plot No. 160, which had been decided in favour of the interested party, Desiderio Nkonge Kirigu. The applicant deponed that the decision was based on erroneous and misleading records and that he risked losing ancestral land, besides alleging eviction and life-endangering threats. The interested party opposed, pointing out that a prior judgment in Chuka JR No. 4 of 2017 had ordered that the objection be heard afresh by a different adjudication officer, that the parties were duly heard including a visit to the locus in quo, and that the applicant now wanted to encroach on his land. The court, per P. M. Njoroge J, noted this was the second judicial review suit between the same litigants over the same subject matter. It held that the applicant was challenging the merits of the DLASO's decision rather than the decision-making process, which falls outside the purview of judicial review, and further that the applicant had not exhausted the available statutory dispute settlement mechanisms. The Chamber Summons was dismissed with costs awarded to the interested party.

Key legal issues

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01

Whether the application disclosed a challenge to the decision-making process rather than the merits

Holding

The application was a challenge to the merits of the DLASO's decision and therefore not amenable to judicial review.

Reasoning

The court noted that this was the second judicial review suit between the same litigants over the same subject matter. From the verifying affidavit it was clear the applicant accepted that the parties were heard but simply disagreed with the outcome of the objection. A disagreement with the findings of the Adjudication Officer goes to the merits, which judicial review does not entertain.

p. 9
02

Whether the applicant exhausted the available statutory dispute settlement mechanisms

Holding

The applicant had not exhausted the available statutory dispute settlement mechanisms, including the Ministerial level of appeal under the land adjudication framework.

Reasoning

The applicant's advocate acknowledged that the parties had gone to various fora up to the level of the District Land Adjudication and Settlement Officer but had not pursued the mechanisms available at the Ministerial level. Failure to exhaust the statutory remedies defeated the application for leave to apply for certiorari.

p. 9

Legal principles established

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  • Judicial review is concerned with the decision-making process and not the merits of the decision; complaints about the correctness of a decision on the evidence fall outside the supervisory jurisdiction.
  • An applicant for judicial review must first exhaust available statutory dispute settlement mechanisms.

Court orders

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  1. 1.This application is hereby dismissed.
  2. 2.Costs are awarded to the Interested Party.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1 and 2
  • Civil Procedure RulesOrder 53 Rule 1(4)
  • Law Reform Actsections 8 and 9
  • Land Adjudication ActCap 284

Cases cited (1)

  • Republic -vs- Mount Kenya University & Another
    [2017] eKLR
Jurisdiction invoked
Order 53 Rules 1 and 2 of the Civil Procedure Rules (judicial review supervisory jurisdiction)

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 Land Adjudication Officer, Mariani Adjudication Section Exparte Benson Nchunge Kujoga; Desiderio Nkonge Kirigu (Interested Party) [2019] KEELC 1616 (KLR)", Case Analysis (2019). Judicial Review (Chamber Summons dated 9th August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1616/eng@2019-10-02

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