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ELCPartially AllowedJudicial Review application (ex-parte Applicant's notice of motion, ex parte Applicant) - number not stated in judgment· [2020] KEELC 2483 (KLR)

Republic v Minister for Lands & another Ex Parte Joash Onyano Opiyo; Daniel Omondi Owira & another (Interested Parties) [2020] KEELC 2483 (KLR)

Environment and Land Court
22 May 2020
AOA.O. Ombwayo
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a Minister's land appeal decision made without notifying the registered owner's family, restoring their land rights.

What this practically means

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Executive summary

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The ex-parte Applicant sought certiorari to quash the Minister's decision of 14th July 2017 in Land Appeal No. 134 of 1995, which cancelled the title to Usenge Adjudication Section No. 2606 and reverted it to Usenge Adjudication Section No. 860; mandamus to compel the District Land Registrar Bondo to reinstate the title in the name of his late father Willis Oduor Opiyo; and a declaration that Civil Suit (ELC) No. 96 of 2015 be set down for hearing. The Applicant contended the Ministerial decision was made without jurisdiction and without a fair hearing. The Interested Parties argued certiorari and mandamus were contradictory and that a section 29 Ministerial determination was final. The Respondents averred the Applicant's family walked out of the hearing. The court framed three issues. First, it held the Minister had jurisdiction: although the Interested Parties obtained consent to file ELC No. 96 of 2015 under section 30(1), the pending appeal was never withdrawn, and proceeding with parallel litigation was forum shopping and an abuse of process. Second, the Applicant proved on a balance of probabilities that the appeal before the Minister involved parties without interest in the land, and that the legal representatives of the registered owner had no notice and were deprived of a fair hearing; the decision was quashed with liberty to lodge a fresh appeal. Third, mandamus could not issue because the 2nd Respondent had lawfully altered the register under section 29(3). Certiorari was granted; the register was to revert to the 1992 objection outcome; the Interested Parties were granted 60 days to appeal afresh; and half costs were awarded to the ex-parte Applicant.

Key legal issues

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01

Whether the Minister had jurisdiction to hear and determine Land Appeal No. 134 of 1995

Holding

The Minister had jurisdiction; filing ELC No. 96 of 2015 without withdrawing the pending appeal did not oust it.

Reasoning

Section 30(1) of the Land Adjudication Act bars civil proceedings in an adjudication section without the adjudication officer's written consent until the register is final under section 29(3). Here consent was obtained, but an appeal to the Minister concerning the same land was still pending and was never withdrawn. Following Samuel Busiega v Jane Jemaiyo Ng'arng'ar, the suit was parallel litigation amounting to forum shopping and an abuse of process, leaving the Minister's appellate jurisdiction under section 29 intact.

p. 3
02

Whether the ex-parte Applicant was afforded a fair hearing before the Minister

Holding

No - the appeal involved parties without interest in the land and the registered owner's legal representatives had no notice, so the decision was quashed.

Reasoning

The suit parcel was registered in the name of Willis Opiyo Oduor, yet the appeal was defended by next of kin of Opiyo Matewa, whose capacity was never clarified. Those kin walked out of the hearing and in ELC No. 96 of 2015 they disclaimed any interest. The ex-parte Applicant, heir apparent of the original objector, was not a party or notified. On a balance of probabilities the Applicant proved a deprivation of the right to a fair hearing, warranting certiorari with liberty to lodge a fresh appeal.

p. 3
03

Whether an order of mandamus could issue against the 2nd Respondent (District Land Registrar Bondo)

Holding

No - the 2nd Respondent lawfully altered the register pursuant to the Minister's decision under section 29(3).

Reasoning

Applying Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, mandamus compels performance of a public duty that has been failed. The 2nd Respondent performed the statutory duty of reflecting the Ministerial determination in the register and could not be expected to reverse entries without a Ministerial decision to that effect. The relief was refused, though after quashing the decision the register must revert to the 1992 adjudication outcome.

p. 3

Legal principles established

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  • Filing a suit in court without withdrawing a pending appeal to the Minister under the Land Adjudication Act does not oust the Minister's jurisdiction; such parallel proceedings amount to forum shopping and an abuse of court process.
  • Where persons with no interest in land are made parties to a ministerial appeal and the registered owner's legal representatives have no notice, the decision is rendered without a fair hearing and liable to be quashed.
  • Mandamus cannot compel a public officer to undo what that officer lawfully did in pursuance of a statutory duty.

Court orders

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  1. 1.Order of certiorari quashing the decision of the Minister in Appeal Case No. 134 of 1995 dated 14th July 2017
  2. 2.The 2nd Respondent to revert the adjudication register to reflect the outcome of the initial adjudication objection of 1992
  3. 3.The Interested Parties to be at liberty to appeal afresh before the Minister within 60 days as provided under Section 29(1) of the Land Adjudication Act
  4. 4.Half costs of the application to the ex-parte Applicant

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 30(1)
  • Land Registration Actnot specified

Cases cited (2)

  • Samuel Busiega v Jane Jemaiyo Ng'arng'ar (sued as the Legal Administrator of the Estate of William Eliud Nga'rnga'r (Deceased)
    [2019] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act and Fair Administrative Action Act (not expressly cited; the Court exercised supervisory review of a Ministerial appeal under Section 29 of the Land Adjudication Act)

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 Minister for Lands & another Ex Parte Joash Onyano Opiyo; Daniel Omondi Owira & another (Interested Parties) [2020] KEELC 2483 (KLR)", Case Analysis (2020). Judicial Review application (ex-parte Applicant's notice of motion, ex parte Applicant) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2483/eng@2020-05-22

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