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ELCAllowedJudicial Review Application – Notice of Motion dated 14th February 2017· [2019] KEELC 4262 (KLR)

Republic v District Land Adjudication and Settlement Officer, Tigania East Sub County; Moses Bariu (Interested Party) [2019] KEELC 4262 (KLR)

High Court of Kenya
28 February 2019
ECE.C. CHERONO
1,572 words in judgment
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The bottom line

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Kenya's High Court cancelled a land adjudication decision because the officer decided it alone instead of sitting with the statutory committee.

What this practically means

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Executive summary

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The ex parte applicant sought, by a substantive notice of motion under Order 53 rules 3 and 4 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, an order of certiorari to quash the decision of the land adjudication officer dated 22 November 2016 in objection no. 1140 concerning land parcel no. 2133 Karama Adjudication Section, together with a stay. Leave had earlier been granted by the duty judge and directed to operate as a stay. The applicant's sole reviewable ground was that the adjudication officer, in breach of section 26(1) as read with section 9(1) of the Land Consolidation Act Cap 283, heard and determined the objection without constituting or involving a committee as the statute mandates. The respondent and the interested party maintained that natural justice was accorded and asked for dismissal with costs. Applying the Municipal Council of Mombasa principle that judicial review examines the decision-making process rather than merits, the court perused the objection proceedings and found no committee member listed as present or participating. It held the decision was made contrary to the statutory provisions, rendering it ultra vires, null and void. The court allowed the motion, issued an order of certiorari quashing the impugned decision together with all orders made thereunder, and an order of mandamus compelling the adjudication officer to rehear objection no. 1140 with the aid of an appointed committee. Because the mistake was not attributable to the parties, each party was ordered to bear his own costs.

Key legal issues

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01

Whether the adjudication officer was bound to consider the objection with a committee constituted under section 9(1) of the Land Consolidation Act

Holding

Yes. The statute mandates the adjudication officer to consider the matter with the committee; hearing it alone violates the statute.

Reasoning

Section 26(1) of the Land Consolidation Act requires the adjudication officer to consider any objection with the committee, while section 9(1) mandates the appointment of a committee of not less than twenty-five members from residents of the adjudication section. Perusal of the objection proceedings showed no committee member present or participating. The decision was therefore made contrary to the statutory scheme and was ultra vires, null and void.

p. 2
02

Scope of judicial review relief over quasi-judicial administrative decisions

Holding

The court confines itself to the process, not the merits; a process failing natural justice and statutory requirements merits certiorari and mandamus.

Reasoning

Applying the Municipal Council of Mombasa principle, the court examines only whether the decision-maker had jurisdiction, whether affected persons were heard, and whether relevant matters were considered. Since the applicant's only reviewable ground was the absence of the committee, and the record confirmed that breach, certiorari to quash and mandamus compelling a fresh hearing with a committee were the appropriate remedies.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • Where the Land Consolidation Act requires the adjudication officer to consider an objection with a committee, a decision made without the committee is ultra vires, null and void.

Court orders

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  1. 1.An order of certiorari issued to remove to the High Court and quash the decision of the lands adjudication officer made on 22.11.2016 relating to land parcel no. 2133/Karama adjudication section in objection no. 1140, together with all orders made thereunder
  2. 2.An order of mandamus issued to the land adjudication officer to hear objection no. 1140 relating to land parcel no. 2133/Kalama adjudication section with the aid of an appointed committee pursuant to section 9(1) of the Land Consolidation Act Cap 283
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1, 2, 3 and 4
  • Law Reform Act, Cap 26 Laws of KenyaSections 8 and 9
  • Land Consolidation Act, Cap 283 Laws of KenyaSections 9(1) and 26(1) (also references to sections 21 and 25)

Cases cited (3)

  • Municipal Council of Mombasa vs Republic & Ummoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic vs Nairobi City Council and Hannah Waithira Gatundu and Exparte Boniface Wachira Gichimu
    (2016) eKLR
  • Republic vs City Council of Nairobi Exparte Rajin Veljishah
    (2014) eKLR
Jurisdiction invoked
Order 53 rules 1, 2, 3 and 4 of the Civil Procedure Rules as read with sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya

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 District Land Adjudication and Settlement Officer, Tigania East Sub County; Moses Bariu (Interested Party) [2019] KEELC 4262 (KLR)", Case Analysis (2019). Judicial Review Application – Notice of Motion dated 14th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4262/eng@2019-02-28

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