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ELCDismissedJudicial Review Notice of Motion dated 1/4/2019 (Kitale)· [2019] KEELC 2166 (KLR)

Beatrice Cheptaus Kokwo alias Chepkokwo & another v Director of Land Adjudication and Settlement & another [2019] KEELC 2166 (KLR)

Environment and Land Court (High Court, Kitale)
18 July 2019
1,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The ex parte applicants, administrators of the estate of Losekwang Kedipa, sought an order of certiorari under Order 53 Rule 1(2) of the Civil Procedure Rules to quash the proceedings, directions and decision of the Cabinet Secretary in Case No. 380 of 1997, by which their brother, the interested party, was to be registered as proprietor of West Pokot/Chepareria/328. They contended the Cabinet Secretary lacked jurisdiction over land whose registered owner was deceased, that they were never notified of the appeal, and that the interested party had no locus standi. The respondent raised a preliminary objection on jurisdiction, non-joinder and defect; the interested party alleged delay, laches and an earlier failed application. The court framed four issues: limitation, jurisdiction, illegality and the orders to issue. It found the application time barred under Order 52 rule 2, since the impugned decision was made on 8/7/2015 and even after the applicants learned of it through eviction proceedings in 2017 they delayed until 2019. It further found the application was fatally defective because the proper decision-maker, the Deputy County Commissioner who acted for the Minister, was not enjoined; the named respondent had only an implementation role. Although the court found the Minister's decision tainted with illegality - the interested party had no letters of administration and no reasons supported the decision - relief was refused. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Limitation under Order 52 rule 2 (six months for certiorari)

Holding

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.

Reasoning

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.

p. 3
02

Misjoinder of respondent

Holding

The application was dismissed because the proper decision-maker, the Deputy County Commissioner who acted for the Minister, was never enjoined.

Reasoning

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.

p. 3
03

Illegality of the Cabinet Secretary's decision

Holding

The court found the Minister's decision tainted with illegality, though it could not quash it on account of the misjoinder and delay.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The judicial review notice of motion application is dismissed for being time barred and for having been commenced against the wrong respondent.
  2. 2.Each party shall bear their own costs of these judicial review proceedings.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Civil Procedure RulesOrder 52 Rule 2
  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform ActSection 9(3)
  • Land Adjudication Act Cap 284not specified

Cases cited (3)

  • Republic -vs- Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited
    [2016] eKLR
  • Republic v District Commissioner, Narok North District & 4 others Ex-Parte Jane Naserian Enelokula
    [2016] eKLR
  • Republic vs. Commissioner of Lands & Another, ex-parte Hammer Heads Limited
    [2013] eKLR
Jurisdiction invoked
Order 53 Rule 1(2) of the Civil Procedure Rules (judicial review)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.