Beatrice Cheptaus Kokwo alias Chepkokwo & another v Director of Land Adjudication and Settlement & another [2019] KEELC 2166 (KLR)
The bottom line
#A Kenyan court found a land decision illegal but still dismissed the challenge because it was filed too late and named the wrong respondent.
What this practically means
#Executive summary
#Key legal issues
#Limitation under Order 52 rule 2 (six months for certiorari)
The application was filed in 2019, long after the impugned decision of 8/7/2015 and even long after the applicants learned of it through eviction proceedings in 2017; it is time barred.
The six-month rule in Order 52 rule 2 applies. The court noted the applicants did not participate in the earlier proceedings, but even after learning of the decision through Kitale ELC No. 59 of 2017 they delayed until 2019 before moving to court. The court was prepared to follow Munyao J's strict approach that a late filing is fatal, and would have dismissed the application on that ground alone.
Misjoinder of respondent
The application was dismissed because the proper decision-maker, the Deputy County Commissioner who acted for the Minister, was never enjoined.
The applicants named the Director of Land Adjudication and Settlement as respondent, but he only implemented the decision and had no role in making it. The Provincial Lands Appeals Committee record shows the Deputy County Commissioner acted on behalf of the Minister in the appeal. With the actual decision-maker absent, the court could not grant the orders sought.
Illegality of the Cabinet Secretary's decision
The court found the Minister's decision tainted with illegality, though it could not quash it on account of the misjoinder and delay.
Both the original parties were deceased when the appeal was heard; the interested party had no letters of administration to warrant registration as proprietor. The record gave virtually no reason for the decision, which rested merely on an agreement between parties. Despite this finding of illegality, the court declined relief because of delay and the wrong respondent being named.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits, but the court may inquire into and quash a decision made without jurisdiction.
- Failure to enjoin the proper decision-making authority is fatal to a judicial review application.
Court orders
#- 1.The judicial review notice of motion application is dismissed for being time barred and for having been commenced against the wrong respondent.
- 2.Each party shall bear their own costs of these judicial review proceedings.
- Jurisdiction invoked
- Order 53 Rule 1(2) of the Civil Procedure Rules (judicial review)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kibwari Plc v Principal Land Registration Officer Ministry of Lands and Physical Plannning & 6 others [2021] KEELC 4206 (KLR)[2021] KEELC 4206 (KLR)25 Feb 2021
- Kibwari Plc v Principal Land Registration Officer Ministry of Lands and Physical Plannning & 6 others [2021] KEELC 4206 (KLR)[2021] KEELC 4206 (KLR)25 Feb 2021applied
Cite this brief
#Cite this brief
Caselaw, "Beatrice Cheptaus Kokwo alias Chepkokwo & another v Director of Land Adjudication and Settlement & another [2019] KEELC 2166 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion dated 1/4/2019 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2166/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.