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ELCDismissedELC Judicial Review Case No. 9 of 2018 (Formerly Machakos Misc. Civil Appl. No. 314 of 2007)· [2020] KEELC 2282 (KLR)

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)

Environment and Land Court of Kenya
29 May 2020
3,098 words in judgment
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The bottom line

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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

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Executive summary

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The Ex-parte Applicant, as legal representative of the estate of James Kulemba Kithambi, sought an order of certiorari to quash the judgment and orders of the District Commissioner, Makueni District, in Minister's appeal No. 212 of 1988 (Nzuna Ngao v James Kulemba Kithambi) delivered on 19th July 2007, and an order of prohibition restraining the District Commissioner from implementing orders removing him from a portion of plot No. 96 Mutyambua Adjudication Area and directing its sub-division. He contended that both parties to the Minister's appeal had died before the hearing, that the appeal was conducted by persons without letters of administration and therefore without locus standi, and that the Minister exceeded jurisdiction by taking fresh evidence and ordering sub-division of land belonging to the registered deceased owner. The Interested Parties opposed, arguing the hearing was consensual among family members, appeals under the Land Adjudication Act do not abate on death as customary claims are inter-generational, the Applicant lacked locus standi under his limited grant, and judicial review concerns process rather than merits. The court framed three issues: fair hearing, locus standi, and excess of jurisdiction. It found the family members appeared without objection and all sides were heard; the Applicant's limited grant could not sustain these proceedings and he was a busybody; and, applying Timotheo Makenge v Manunga Ngochi, the Minister was not bound by civil suit procedure and did not exceed jurisdiction. The Notice of Motion dated 23rd January 2008 was dismissed with costs to the Interested Parties.

Key legal issues

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01

Whether the parties who appeared before the Minister received a fair hearing

Holding

Both deceased parties were represented by family members who raised no objection, argued the appeal and presented evidence; no breach of natural justice occurred

Reasoning

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.

p. 4
02

Whether the Ex-parte Applicant had locus standi to bring the judicial review proceedings

Holding

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

Reasoning

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.

p. 4
03

Whether the Minister acted in excess of jurisdiction by taking fresh evidence on appeal

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 23rd January, 2008 is dismissed
  2. 2.Costs of the application awarded to the Interested Parties

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rule 3(1)
  • Civil Procedure RulesOrder XXIII Rules 2, 3 & 4
  • The Law Reform Act (Chapter 26, Laws of Kenya)
  • Land Adjudication Act (Chapter 284, Laws of Kenya)Section 13(5)
  • Land Adjudication Act (Chapter 284, Laws of Kenya)Section 29(1)

Cases cited (4)

  • James Akelo vs. Raphael Onyango
    Kisumu Court of Appeal No. 58 of 1984
  • Northern Construction Company Ltd vs. AG & 3 others
    [2008] KLR 328
  • Timotheo Makenge vs. Manunga Ngochi
    [1976-80] KLR 1136
  • Ransa Company Ltd. vs. Manca Francesco & 2 others
    [2015] eKLR
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

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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 - 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

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