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ELCDismissedJudicial Review Case No. 15 of 2018· [2020] KEELC 1912 (KLR)

Republic v Danson Kioko Kivuva & another Ex-Parte Benjamin Maweu Ndivo & 7 others [2020] KEELC 1912 (KLR)

Environment and Land Court of Kenya
25 June 2020
CMC. G. Mbogo
3,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The ex-parte Applicants, members of the Mbaa Mulea Itema clan, sought judicial review orders of certiorari to quash the decision of the Deputy County Commissioner, Makindu Sub-County dated 19th January 2017 in Minister of Lands Appeal No. 216 of 1998 over parcels Makindu/Kisingo 908 and 1827; an order of mandamus compelling the Deputy Land Registrar to cancel the title deed for parcel 1827; and a declaration that the boundary between the parties is that fixed in Kilungu case L.126 of 1974. The dispute traces to land acquired in 1953, clan subdivision in 1974, litigation at Kilungu Law Courts, land adjudication proceedings, an objection and a 1998 appeal to the Minister, which was dismissed in 2017. The 1st Respondent, legal representative of Kivuva Nzikali, opposed the motion, asserting the title was lawfully issued after the adjudication register was finalized and that no fraud or procedural breach was proved. The 2nd Respondent argued the Applicants were notified, were attacking the merits rather than the process, and that the Court lacked jurisdiction to order cancellation of a title or grant declarations in judicial review. The court held that judicial review concerns the decision-making process, not the merits; that the hearing before the Minister was fair, with notice and participation by Jonathan Ndivo; that the Minister acted under section 29(1) of the Land Adjudication Act; that failure to notify is not a ground for quashing; and that the Applicants failed to prove the title was unprocedurally acquired. The motion was dismissed with costs to the 1st and 2nd Respondents.

Key legal issues

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01

Whether the Minister's decision in Appeal No. 216 of 1998 was reached through a lawful process and can be quashed by certiorari

Holding

The application fails; the hearing before the Minister was fair and the decision was neither illegal, irrational nor procedurally improper

Reasoning

The court found that Jonathan Ndivo attended the hearing on 19th January 2017, presented his case and had witnesses, showing adequate notice and opportunity. A letter dated 15th June 2017 notifying him of the verdict existed, and the 1st Respondent deposed that the 1st Applicant was given a copy of the ruling by the Chief. Judicial review examines process, not merits, and no process flaw was shown.

p. 5
02

Whether the Minister had jurisdiction to determine the appeal

Holding

Yes, under section 29(1) of the Land Adjudication Act the Minister was empowered to preside over the appeal

Reasoning

The court reproduced section 29(1) of the Land Adjudication Act, Cap 284, which permits a person aggrieved by an objection determination to appeal to the Minister within sixty days, with the Minister's order being final. The Minister therefore did not act ultra vires, even though the appeal filed in 1998 was out of time since the Adjudication Officer's decision was made in 1992.

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03

Whether mandamus should issue to compel cancellation of the title deed for Makindu/Kisingo 1827

Holding

No; the Applicants failed to prove the title was acquired unprocedurally and mandamus cannot quash what has already been done

Reasoning

The totality of evidence showed the title was registered in the name of Kivuva Nzikali after finalization of a protracted dispute in various fora. The title deed was issued in 2007 and was never encumbered at the Applicants' instance. Counsel's authority that mandamus cannot quash what has already been done was accepted.

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Legal principles established

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  • Judicial review is concerned with the decision-making process and not the merits of the decision
  • Failure to notify a party of a decision is not a ground to quash it
  • A party alleging unprocedural acquisition of title bears the burden of proving it

Court orders

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  1. 1.The substantive motion dated 20th December 2018 is dismissed
  2. 2.Costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3 & 4
  • Law Reform Act, Cap 26Sections 8 & 9 (and section 8(2) quoted via Mombasa Maize Millers)
  • Land Adjudication Act, Cap 284Section 29(1)
  • Administration of Justice (Miscellaneous Provisions) Act of 1938 (United Kingdom)Section 7

Cases cited (4)

  • Republic –vs- Kenya Revenue Authority & Anor Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Republic –vs- Chief Registrar & 3 Others
    (2014) eKLR
  • National Examination Council –vs- Geoffrey Gathenji Njoroge & 9 Others
    Civil Appeal No. 266 of 1996
  • Mombasa Maize Millers Ltd –vs- Commissioner of Lands
    (2007) eKLR
Jurisdiction invoked
Sections 8 & 9 of the Law Reform Act, Cap 26 and Order 53 Rules 3 & 4 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 Danson Kioko Kivuva & another Ex-Parte Benjamin Maweu Ndivo & 7 others [2020] KEELC 1912 (KLR)", Case Analysis (2020). Judicial Review Case No. 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1912/eng@2020-06-25

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