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ELCDismissedJudicial Review Notice of Motion dated 11th March, 2019· [2020] KEELC 3497 (KLR)

Republic v Deputy County Commissioner Matungulu Sub-County & 3 others;Anthony Munyao Kata & 3 others (Interested Parties) Ex parte Gregory Muthoka Kakonzi [2020] KEELC 3497 (KLR)

High Court of Kenya, Environment and Land Division (Machakos)
21 February 2020
2,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a landowner's challenge to a government land ruling, confirming that you don't need succession papers to claim ancestral land during adjudication.

What this practically means

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Executive summary

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The Ex-parte Applicant, son of the late Syevuo Kata, moved the Court by Notice of Motion dated 11th March 2019 seeking certiorari to quash the 1st Respondent's (Deputy County Commissioner's) Ruling of 16th October 2018 dismissing a Ministerial Appeal, and prohibitions restraining the identification of the boundary of, and issuance of titles over, land parcel Machakos/Nguluni/1934. He argued that the appeal hearing violated Article 47 and the Fair Administrative Action Act because he was not given adequate time to table evidence or call witnesses, and that the 1st Respondent acted ultra vires by arbitrating over land of deceased persons whose estates had not gone through succession. The Respondents and Interested Parties countered that both sides were heard, the decision was implemented through title issuance, and the application was an abuse of process. The court, applying the settled scope of judicial review and the proportionality standard in Suchan Investment Limited, held that review concerns the decision-making process, not merits, though proportionality invites some merit scrutiny without power to substitute the administrator's decision. On the succession point, following Odunga J in the Kakui Mutiso case, the court held that land in an adjudication area before registration cannot form part of a deceased's estate requiring letters of administration, and the Land Adjudication Act contains no substitution requirement. The record showed the Applicant testified, was cross-examined, and all family branches were represented. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the 1st Respondent accorded the Ex-parte Applicant a fair hearing

Holding

The Applicant was heard, his testimony recorded, he was cross-examined, and the 1st Respondent gave reasons for his findings; the application fails

Reasoning

The court examined the proceedings before the 1st Respondent and found the Applicant testified, was cross-examined, and the other branches of the family were represented. The 1st Respondent made findings and gave reasons based on Kamba customary law, which were not unreasonable or disproportionate. The court, guided by Article 47 and the Fair Administrative Action Act, held that a fair hearing was accorded and the process was lawful.

p. 4
02

Whether the absence of letters of administration for the deceased registered owners vitiated the Ministerial Appeal proceedings

Holding

It did not; parties in adjudication proceedings need not be legal representatives of deceased owners

Reasoning

Relying on Odunga J's decision in Republic vs. District Commissioner Machakos, Ex-parte Kakui Mutiso, the court held that before registration, land in an adjudication area is ancestral/communal and the strict succession regime does not apply. There is also no provision under the Land Adjudication Act requiring substitution by legal representatives. All three wives' families were in fact represented before the 1st Respondent.

p. 3
03

Scope of judicial review including proportionality review under the Fair Administrative Action Act

Holding

Proportionality permits some merit consideration but the court cannot substitute its decision for the administrator's; here the decision was proportionate

Reasoning

Following Suchan Investment Limited, the court accepted that Section 7(2)(l) of the Fair Administrative Action Act introduces proportionality as a ground of review inviting greater intensity of review. However, the reviewing court has no mandate to substitute its own decision and can only remit or make orders under Section 11 of the Act. Applying that standard, the 1st Respondent's decision was neither unreasonable nor disproportionate.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Proportionality under Section 7(2)(l) of the Fair Administrative Action Act introduces a shift towards merit consideration in statutory judicial review, but the reviewing court cannot substitute its own decision for that of the administrator
  • A person claiming an interest in land within an adjudication area need not obtain letters of administration before making such a claim

Court orders

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  1. 1.The Notice of Motion dated 11th March, 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47; Article 24(1)(b) and (e)
  • Fair Administrative Action ActSection 7(2)(l); Section 11
  • Law of Succession Actgeneral application to estates
  • Land Adjudication Actadjudication proceedings

Cases cited (5)

  • Commissioner of Lands vs. Kunste Hotel Limited
    (1997) eKLR
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited
    Civil Appeal No. 185 of 2001
  • Suchan Investment Limited vs. The Ministry of National Heritage & Culture & Others
    (2016) eKLR
  • Republic vs. District Commissioner Machakos & Another, Ex-parte Kakui Mutiso
    (2014) eKLR
  • R v Home Secretary; Ex parte Daly
    [2001] 2 AC 532
Jurisdiction invoked
Judicial review jurisdiction under the Constitution (Article 47) and the Fair Administrative Action 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 Deputy County Commissioner Matungulu Sub-County & 3 others;Anthony Munyao Kata & 3 others (Interested Parties) Ex parte Gregory Muthoka Kakonzi [2020] KEELC 3497 (KLR)", Case Analysis (2020). Judicial Review Notice of Motion dated 11th March, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3497/eng@2020-02-21

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