Republic v Cabinet Secretary for Lands and Physical Planning & 2 others; Mary Wandama Gachoki (Interested Party) Ex Parte Danson Kirunyu Represented by Dedan Maina Gathara [2020] KEELC 1575 (KLR)
The bottom line
#A Kenyan landowner lost his challenge to a Cabinet Secretary's land decision because he failed to properly serve the court papers on all the parties involved.
What this practically means
#Executive summary
#Key legal issues
#Proper service of judicial review application on Respondents and Interested Party
Service on the Respondents was improper as an unnamed secretary at Ardhi House was served with a stamp merely reading 'Ministry of Lands'; the Interested Party was never served and no substituted service was sought
The court found the three Respondents could not share a common secretary, the stamp did not identify any of them, and in judicial review the cited Respondents must be served separately or through the Attorney General. The process server made only one attempt on the Interested Party and abandoned service without applying for substituted service. The parties were thus denied an opportunity to be heard contrary to natural justice.
Consequence of failure to serve orders of 14th May 2020
The Applicant failed to extract and serve the directions orders; the sanction is striking out, contrary to the overriding objective in Sections 1A and 1B of the Civil Procedure Act
Service of the orders was meant to inform the Respondents and Interested Party of the directions so they could comply. The process server was never given the orders to serve. The court held this second violation of specific directions also warranted striking out of the application.
Locus standi of the Interested Party to prosecute the appeal without a grant
There is no legal requirement for a grant of letters of administration or probate before pursuing an appeal under Section 29 of the Land Adjudication Act
Following Dominic Musei Ikombo v Kyule Makau, proceedings under the Land Adjudication Act are not akin to civil litigation; the Minister has wide latitude and Section 13 speaks of a 'guardian' or 'representative according to African Law', not legal representatives. The court found nothing wrong with the Interested Party's institution and prosecution of the appeal.
Whether the Applicant made out a case for judicial review orders
The court declined to determine the merits given the service failures
Since the Applicant failed to comply with the two orders facilitating a just, effective and timely resolution, the court held it unnecessary to delve into the merits. A proper trial on the merits was impossible where no proper service was effected on all concerned parties.
Legal principles established
#- Strict rules of civil litigation on capacity to sue, including the need for letters of administration, do not apply to proceedings before the adjudication committee or the Minister under the Land Adjudication Act
- Failure to serve parties as directed by the court and to comply with service directions warrants striking out of a judicial review application
Court orders
#- 1.The Applicant's notice of motion dated 21st May 2020 is struck out under the inherent power of the court
- 2.There is no order as to costs
- Jurisdiction invoked
- Order 53 Rules 1 & 2 and Rule 3 of the Civil Procedure Rules; Section 9 of the Law Reform Act (Cap. 26); Section 29 of the Land Adjudication Act (Cap. 284)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary for Lands and Physical Planning & 2 others; Mary Wandama Gachoki (Interested Party) Ex Parte Danson Kirunyu Represented by Dedan Maina Gathara [2020] KEELC 1575 (KLR)", Case Analysis (2020). E.L.C. Misc Application No. 5 of 2020 (JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1575/eng@2020-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.