Republic v District Commissioner - Makueni District; Ronald Musau Ngao & 2 others (Interested Parties) Ex Parte Alfonce Muli Kulemba (Legal representative estate of James Kulemba Kithambi) [2020] KEELC 2282 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to overturn a land adjudication appeal, ruling family members' participation satisfied fair hearing requirements and the applicant lacked proper legal standing.
What this practically means
#Executive summary
#Key legal issues
#Whether the parties who appeared before the Minister received a fair hearing
Both deceased parties were represented by family members who raised no objection, argued the appeal and presented evidence; no breach of natural justice occurred
The court found that on 14th June and 11th July 2007 the deceased appellant and respondent were represented by their respective family members, none of whom objected to the hearing proceeding. All were allowed to argue and present evidence, and the Ex-parte Applicant himself was represented by family members whose claim encompassed his. No family member complained of denial of a hearing, so no unfairness was established.
Whether the Ex-parte Applicant had locus standi to bring the judicial review proceedings
He had none; his grant was limited to filing an injunction suit over a different plot, and his rights were dependent on the family members who represented him before the Minister
The temporary grant of letters of administration (AMK-4) was limited to filing and prosecuting Makindu civil suit No. 221 of 2007 for injunction over plot No. 98. It could not support the present judicial review. The court agreed he was a mere busybody and noted his rights before the Minister were dependent on the family members who appeared, none of whom complained of unfair treatment.
Whether the Minister acted in excess of jurisdiction by taking fresh evidence on appeal
He did not; section 29(1) does not prescribe the manner of hearing, evidence was taken from both sides, and the Timotheo Makenge authority binds the court
Relying on Timotheo Makenge v Manunga Ngochi, the court held the Minister deciding appeals under the Land Adjudication Act is not bound by civil suit procedure and may hear evidence. Section 29(1) does not define how the appeal is to be heard nor forbid oral evidence. Evidence was received from both the appellant's and respondent's families and no party was shut out, so there was no excess of jurisdiction.
Legal principles established
#- A court sitting on judicial review exercises a restrictive sui generis jurisdiction concerned with the decision-making process, not the merits of the decision
- Customary claims to land rights under the Land Adjudication Act are inter-generational and appeals thereunder do not abate on the death of the principal litigants; attendance of a successor is deemed attendance of all successors under section 13(5)
- The Minister hearing an appeal under section 29(1) of the Land Adjudication Act is not bound by the procedure laid down for hearing civil suits and may hear evidence; doing so is not excess of jurisdiction nor a breach of natural justice
- A limited grant of letters of administration cannot be used to institute proceedings beyond its stated purpose; such a party lacks locus standi
Court orders
#- 1.The Notice of Motion application dated 23rd January, 2008 is dismissed
- 2.Costs of the application awarded to the Interested Parties
- Jurisdiction invoked
- Judicial review jurisdiction under Order LIII Rule 3(1) and Order XXIII Rules 2, 3 & 4 of the Civil Procedure Rules, the Law Reform Act (Cap 26) and section 29 of the Land Adjudication Act, pursuant to leave granted on 17th January 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Commissioner - Makueni District; Ronald Musau Ngao & 2 others (Interested Parties) Ex Parte Alfonce Muli Kulemba (Legal representative estate of James Kulemba Kithambi) [2020] KEELC 2282 (KLR)", Case Analysis (2020). ELC Judicial Review Case No. 9 of 2018 (Formerly Machakos Misc. Civil Appl. No. 314 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2282/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.