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ELCDismissedJudicial Review (Meru) - leave/substantive motion, objection case no. 5016 referenced· [2019] KEELC 4613 (KLR)

Domenica Kalotia Kalalu v Tigania East District Land and Settlement Officer & another; Shadrack Muthee M’imanja (Interested Party) [2019] KEELC 4613 (KLR)

Environment and Land Court
20 February 2019
LMLUCY N. MBUGUA
1,884 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (L.N. Mbugua, ELC Judge) determined a preliminary objection by the interested party seeking to strike out judicial review proceedings brought by the exparte applicant challenging a decision in objection case no. 5016 conducted under the Land Consolidation Act (Cap 283). The interested party raised seven grounds, principally that section 8 of the Land Consolidation Act (and section 30 of the Land Adjudication Act) barred the suit for want of the Adjudication Officer's written consent; that sections 2(1) and 54 of the Law of Succession Act and the absence of a grant ad litem robbed the applicant of capacity; and that the motion offended Order 53 of the Civil Procedure Rules. The respondent Attorney General associated itself with the interested party's arguments. Relying on Antina Mahammed Hamisi, Joseph Lesalol Lekitio and B & M Mining, the court held that the consent provisions bar only civil proceedings calling land interests into question, whereas judicial review is sui generis - neither civil nor criminal - and challenges the decision-making process without consent. On capacity, applying Tobias Achola Osindi and section 13(4) of the Land Consolidation Act, the court held that heirs and claimants may appear in adjudication proceedings without a grant since rights there remain under ascertainment; the applicant had also been dragged into the objection proceedings by the interested party. The Order 53 ground failed because leave had been obtained and no offence was demonstrated. The preliminary objection was dismissed in its entirety with costs to the exparte applicant.

Key legal issues

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01

Whether judicial review proceedings challenging the adjudication process require consent of the Adjudication Officer under section 8 of the Land Consolidation Act

Holding

No consent is required; the consent provisions bar only civil proceedings calling an interest in land in question, and judicial review jurisdiction is sui generis

Reasoning

Relying on Antina Mahammed Hamisi and Joseph Lesalol Lekitio, the court held that the statutory bars apply to civil proceedings concerning interests in land. Judicial review questioning the decision-making process is neither civil nor criminal, being exercised sui generis under Order 53, and thus lies without the Adjudication Officer's consent.

p. 3
02

Whether the Exparte Applicant needed a grant ad litem under sections 2(1) and 54 of the Law of Succession Act

Holding

The Law of Succession Act was not applicable; under section 13 of the Land Consolidation Act heirs and persons claiming interests may appear in adjudication proceedings without a grant

Reasoning

The court found that in adjudication proceedings the rights and interests of parties are still being ascertained, so the succession statute did not apply. Section 13(4) deems the appearance of one heir the appearance of all, and a claim can be made by successors without the deceased's legal representatives.

p. 3
03

Whether the judicial review motion offended Order 53 of the Civil Procedure Rules

Holding

No offence shown; leave was duly obtained and the substantive motion was properly filed

Reasoning

The interested party did not demonstrate in what manner the motion offended Order 53. Since leave had been obtained and the motion properly filed, the ground failed.

p. 4

Legal principles established

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  • Prior written consent of the Adjudication Officer under section 8 of the Land Consolidation Act (and section 30 of the Land Adjudication Act) is not required before commencing judicial review proceedings, because judicial review is neither civil nor criminal but sui generis
  • Heirs and persons claiming an interest in land within an adjudication section may appear and claim under section 13 of the Land Consolidation Act without a grant of letters of administration, since adjudication ascertains rights and interests

Court orders

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  1. 1.The preliminary objection dated 2.10.2018 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Exparte Applicant

Authorities

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Legislation

  • Land Consolidation Actsections 8, 12, 13, 13(4)
  • Land Adjudication Actsections 2, 30, 30(1)
  • Law of Succession Act (Cap 160)sections 2(1), 54; Form 14, Fifth Schedule
  • Civil Procedure Act (Cap 21)Order 53
  • Registered Land Act (Cap 300)referenced in definition of 'interest'

Cases cited (10)

  • Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    1969
  • Isaiah Muturi Mucee vs Lucy Chabari & 2 others
    Civil Case No. 164/2015 (unreported)
  • Nicholas Tukei vs Chepochepkatang Lounek & 2 others
    H.C. Civil Suit No. 90/12 Kitale
  • Nicholas Kiptoo Arap Korir vs Independent Electoral and Boundaries Commission and 6 others
    2013
  • Commissioner of Lands vs Kunste Hotel Ltd
    Civil Appeal No. 234/1995
  • Republic vs Town Clerk Kisumu Municipality – Exparte East A.E Consultants
    (2007) 2 page 441
  • Antina Mahammed Hamisi Exparte Applicant vs Suba District and Others
    JR No. 17 of 2012 Kisii
  • Joseph Lesalol Lekitio & Others Exparte Applicants vs Musanka Ole Runtes Tarakwa & Others
    JR No. 13/14 Nakuru
  • B & M Mining Co. Ltd vs Minister of Environment and Mineral Resources, Commissioner for Mines & Geology
    JR No. 20/11 Kisumu
  • Tobias Achola Osindi & 13 Others versus Cyprianus Otieno Ogalo & 6 Others
    HCCC No. 4 of 2011
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; Land Consolidation Act (Cap 283) and Law of Succession Act (Cap 160) raised as bars

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Domenica Kalotia Kalalu v Tigania East District Land and Settlement Officer & another; Shadrack Muthee M’imanja (Interested Party) [2019] KEELC 4613 (KLR)", Case Analysis (2019). Judicial Review (Meru) - leave/substantive motion, objection case no. 5016 referenced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4613/eng@2019-02-20

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