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ELCPartially AllowedJudicial Review Motion (formerly Ex Parte Applicant deceased), Akaiga Land Adjudication Section, Objection No. 798· [2020] KEELC 1269 (KLR)

Republic v District Land Adjudication Officer Tigania East District; M’twamwari Paul Kangeri & 2 others (Interested Parties) Ex parte Julius Marete Ibutu [2020] KEELC 1269 (KLR)

Environment and Land Court
30 September 2020
2,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a land objection decision because the owner was never heard and the officer acted without the required committee.

What this practically means

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Executive summary

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The ex-parte applicant purchased 13 acres recorded in R.E.R folio No. 524 in Akaiga Land Adjudication Section from the 2nd interested party through objections Nos. 1242, 1254 and 1260, and the land was demarcated to him as parcel No. 1527. Some 37 years later, after the adjudication register was completed, the 1st interested party lodged Objection No. 798 against five relatives including the 2nd interested party, seeking return of the land. The Land Adjudication Officer allowed the objection on 6/2/2014 without joining or notifying the ex-parte applicant, whose parcel would be affected. The applicant moved the court for certiorari and prohibition. The court, guided by the principle that judicial review concerns the decision-making process rather than merits, found that the objection proceedings were conducted without the aid of the Arbitration Board or committee as required by sections 17, 18 and 26 of the Land Consolidation Act; that the applicant was denied natural justice, contrary to the audi alteram partem rule; and that the decision awarding the objector 30.50 acres bore no nexus to the eleven parcels identified in the objection or to the evidence. The 3rd interested party, son of the deceased 1st interested party, was held to lack locus standi as no grant of representation had issued. The court allowed the claim, quashing the entire objection No. 798 proceedings and order, prohibiting their implementation, remitting the dispute to the respondent for a fresh hearing in accordance with the law, and ordering each party to bear their own costs.

Key legal issues

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01

Compliance with the procedural scheme of the Land Consolidation Act in objection proceedings

Holding

The objection No. 798 proceedings were flawed because the respondent determined them single-handedly without the aid of the Arbitration Board or committee as required by sections 17, 18 and 26 of the Land Consolidation Act.

Reasoning

The court analysed the statutory scheme: objections touching R.E.R are heard by committees or the Land Adjudication Officer with the aid of the Arbitration Board, while objections to the adjudication register under section 26 must be heard with the aid of a committee. The record showed the respondent acted alone, rendering the process improper and the decision liable to quashing.

p. 3
02

Breach of natural justice (audi alteram partem)

Holding

The exparte applicant, the absolute owner of parcel No. 1527, was not a party to nor informed of the objection proceedings, breaching natural justice.

Reasoning

The applicant purchased all 13 acres in folio No. 524, which were demarcated to him as parcel No. 1527. The objection proceedings 37 years later could undo his title, yet he was neither joined nor notified. The court agreed with the respondent's concession and the applicant's submissions that the rule audi alteram partem was violated.

p. 3
03

Whether the decision had a rational nexus with the evidence

Holding

The decision had no nexus with the evidence or the 11 parcels in the objection claim and was therefore devoid of reason.

Reasoning

The objection concerned 11 parcels but the objector mentioned only parcel 2362; the respondents conceded without reference to the parcels. Yet the respondent awarded the objector 6.50 acres from each respondent totalling 30.50 acres. The award was disconnected from the pleadings and evidence, disclosing an irrational decision-making process.

p. 3
04

Locus standi of the 3rd interested party

Holding

The 3rd interested party, son of the deceased 1st interested party, lacked locus standi as no grant had been issued for the estate.

Reasoning

Joseph Ntongai appeared as son of the 1st interested party who died on 27.2.2014. By his own admission no grant had been issued in respect of his father's estate; he was therefore not a legal representative and could not represent his father's interests. His claim was disregarded.

p. 4

Legal principles established

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  • Objection proceedings under the Land Consolidation Act must be heard with the aid of the relevant committees or Arbitration Board as prescribed; proceedings conducted by the Land Adjudication Officer alone are flawed.
  • A person affected by a decision-making process who was not given an opportunity to be heard is denied natural justice.
  • A decision not supported by, or having no nexus with, the evidence tendered is devoid of reason and liable to be quashed on judicial review.
  • A person who has not obtained a grant of representation lacks locus standi to represent a deceased person's interests.

Court orders

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  1. 1.An Order of certiorari removing and quashing the whole of the respondent's proceedings, findings and order in objection No. 798 made on 6/2/2014
  2. 2.An order of prohibition prohibiting implementation of the respondent's decision and orders in objection No. 798 made on 6/2/2014
  3. 3.The dispute remitted back to the respondent to be heard afresh in accordance with the applicable law
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Consolidation ActSections 17, 18, 19, 20, 26(1), 26(3)
  • Land Adjudication ActSection 29(4)
  • Civil Procedure RulesOrder 21 rule 1; Order 53

Cases cited (16)

  • Republic vs. The Honourable the Chief Justice of Kenya & Others; Exparte Moijo Ole Keiwua
    Nairobi HCMCA 1298 of 2004
  • Municipal Council of Mombasa v Republic and Another
    [2002] eKLR
  • Republic v Land Adjudication Officer Tigania East & another; Geoffrey M'Itabari (Interested Party) Ex Parte Applicants M'Ithana M'Ithai & another
    [2019] eKLR
  • Peter Kimandiu vs The Land Adjudication Officer Tigania West District and 4 Others
    (2016) eKLR
  • Reuben Mwongela M'Itelekwa vs Paul Kigea Nabea & others
    Meru ELC PET No. 6 of 2017
  • Zipporah Nkoyai vs James Kaberia M. & 2 others
    Meru ELC Pet No. 2 of 2012
  • Nicholas Mugambi & others vs Zachary Baariu & 6 others
    Meru E & L case No. 167 of 2011
  • Ann Awuda & 3 others vs Kenya Airways Corporation & another
    (2015) eKLR
  • Speaker of National Assembly vs Karume
    (1992) KLR 425
  • Andrew Lionel Philips & 15 others vs National Director of Public Prosecutions
    CC 55 of 2004
  • Abdallah Mangi Mohammed vs Lazarus & 5 others
    (2012) eKLR
  • Stephen Kungutia & 2 others vs Severian Nchulubi
    Nyeri Civil Appeal No. 221 of 2010
  • Samuel Kilema and another vs Festus Gituma Kuthuka
    Meru HCCA No. 306 of 2013
  • Hon. (Lady) Justice Kalpana H. Rawal vs Judicial Service Commission & others
    Supreme Court Civil Application No. 11 of 2016
  • Owner of Motor Vessel 'Lillian S' vs Caltex Oil Kenya Ltd
    (1989) 1 KLR 1
  • Kakuta Maimai vs Peris Pesi Tobiko & 2 others
    (2013) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules over decisions of the Land Adjudication Officer under the Land Consolidation Act (Cap 283)

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 Officer Tigania East District; M’twamwari Paul Kangeri & 2 others (Interested Parties) Ex parte Julius Marete Ibutu [2020] KEELC 1269 (KLR)", Case Analysis (2020). Judicial Review Motion (formerly Ex Parte Applicant deceased), Akaiga Land Adjudication Section, Objection No. 798. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1269/eng@2020-09-30

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