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ELCDismissedE.L.C. JR No. 5 of 2019 (Formerly Meru Environment and Land Judicial Review No. 122 of 2007)· [2020] KEELC 1574 (KLR)

Republic v District Commissioner, Mbeere District & 2 others;Ex Parte Applicant Njiru Kugariura (On Behalf of Ikambi Clan);Abiud Wilson Njue (Interested Party) eKLR [2020] KEELC 1574 (KLR)

Environment and Land Court
27 July 2020
3,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a clan's bid to overturn land appeal decisions, confirming that courts review how decisions are made, not whether you disagree with them.

What this practically means

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Executive summary

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The ex parte Applicant, suing on behalf of the Ikambi Clan, sought judicial review orders of certiorari and prohibition to quash the Minister for Lands' decisions in Minister's Land Appeals Nos. 146 of 1996 and 171 of 1996, together with an order compelling the Respondents to award the Ikambi Clan 269 acres at Kiandangwa and 58 acres at Ikunja from parcel No. 2244 Mbeere District. He alleged that the appeals were filed out of time, that they did not challenge the decisions appealed from, that they were heard as independent causes, and that the rules of natural justice were violated. The Respondents did not file a replying affidavit but produced a letter from the Director of Land Adjudication showing both appeals were filed on 16th November 1992 within the statutory 60-day period. The Interested Party, representing the Mururi Clan, contended the appeals were filed in time, that the decisions had been implemented and titles issued, and that the original parcel had been subdivided. The court framed five issues and found that the appeals were filed within time, the 1996 reference numbers reflecting internal administrative assignment; that no breach of natural justice was demonstrated since both clans called and cross-examined witnesses; that no procedural or statutory provision was breached, Section 29 of the Land Adjudication Act leaving hearing procedure to the Minister's discretion; and that the Applicant had no evidential basis for the acreage claimed, allocation of land being a matter for adjudication officers, not the court. The court held the Applicant was aggrieved by the merits and mounting a back-door appeal against a final decision. The notice of motion dated 8th February 2008 was dismissed in its entirety with costs to the Respondents and the Interested Party, and any orders of stay in force were vacated.

Key legal issues

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01

Whether the Minister's appeals were filed out of time

Holding

Not proved; the appeals were filed within the statutory 60-day period, the 1996 reference numbers reflecting internal administrative processing

Reasoning

The Applicant relied only on the 1996 case numbers, which the court held is not conclusive evidence of filing date. The Interested Party exhibited the appeal and payment receipt showing timely filing, which the Applicant never disputed by further affidavit. The Director of Land Adjudication's letter confirmed both appeals were lodged on 16th November 1992 within the statutory period. Even if late, no objection was raised before the Minister and no prejudice was shown.

p. 4
02

Whether the rules of natural justice were violated

Holding

Not proved; both clans were accorded an opportunity to call and cross-examine witnesses

Reasoning

Apart from a bare statement in the statutory statement, no particulars of the alleged violation were given in the statutory statement, verifying affidavit or submissions. It was neither alleged nor demonstrated that the Applicant was denied a hearing or that the Minister was biased. The appeal proceedings showed both clans participated actively by calling and cross-examining witnesses.

p. 4
03

Whether the appeals were heard in contravention of applicable law and procedure

Holding

No; Section 29 of the Land Adjudication Act leaves the procedure to the Minister's discretion, so taking evidence and a site visit could not oust jurisdiction

Reasoning

The Applicant failed to identify a single statutory or procedural provision violated. Section 29(1) prescribes only the mode of instituting an appeal and makes the Minister's order final. The law neither requires nor forbids the taking of evidence or a site visit. The court held it hypocritical for the Applicant, who participated in the process, to condemn it after losing.

p. 4
04

Whether the Applicant demonstrated a case for judicial review orders

Holding

No; the Applicant was actually aggrieved by the merits of the Minister's decisions and was mounting an appeal through the back door

Reasoning

The claim for 269 acres had no evidential basis in the statutory statement or verifying affidavit, and allocation of land rests with officers under the Land Adjudication Act, which a court cannot usurp. There was no pre-2016 statutory duty to give reasons. Section 29 makes the Minister's decision final; judicial review lies only for process defects, none of which were demonstrated.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • An applicant for judicial review must show the decision is tainted with illegality, irrationality or procedural impropriety
  • Section 29 of the Land Adjudication Act makes the Minister's decision on appeal final and prescribes no particular hearing procedure
  • Courts should not usurp the role of administrators in allocating land between competing claims

Court orders

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  1. 1.The Applicant's notice of motion dated 8th February 2008 is dismissed in its entirety with costs to the Respondents and the Interested Party
  2. 2.Any orders of stay in force are vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rules 1, 2, 3 & 4
  • Law Reform Act (Cap. 26)Sections 8 and 9
  • Land Adjudication Act (Cap. 284)Section 29(1)
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)
  • Fair Administrative Action Act, 2016not specified

Cases cited (12)

  • Municipal Council of Mombasa V Republic & Umoja Consultant Limited
    [2002] eKLR
  • Republic V Secretary of the Firearms Licensing Board & 2 Others ex parte Senator Johnstone Muthama
    [2018] eKLR
  • Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited
    (2008) eKLR
  • Pastoli V Kabale District Local Government Council & Others
    [2008] E.A. 300
  • Council of Civil Service Union v Minister for the Civil Service
    [1985] A.C.2
  • Francis Bahikirwe Muntu and Others Vs Kyambogo University
    Miscellaneous application number 643 of 2005 (UR)
  • Re an application by Bukoba Gymkhana Club
    [1963] EA 478
  • Al-Mehdawi V Secretary of State for the House Department
    [1990] AC 876
  • Watuku Mutsiemi & Another V Republic and 5 Others
    [2018] eKLR
  • Lucy Mirigo & 550 Others V Minister for Lands & 4 Others
    [2014] eKLR
  • R – v- Lancashire County Council Ex p Gayer
    (1980) 1 WLR 1024
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA. 287
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap. 26) and Order LIII of the Civil Procedure Rules

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 Commissioner, Mbeere District & 2 others;Ex Parte Applicant Njiru Kugariura (On Behalf of Ikambi Clan);Abiud Wilson Njue (Interested Party) eKLR [2020] KEELC 1574 (KLR)", Case Analysis (2020). E.L.C. JR No. 5 of 2019 (Formerly Meru Environment and Land Judicial Review No. 122 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1574/eng@2020-07-27

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