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ELCDismissedChuka Judicial Review Division No. E003 of 2021· [2021] KEELC 1009 (KLR)

Naftaly Nthedu Rubane v District Land Adjudication and Settlement Officer Tharaka South Subcountycounty & 2 others; David Muriungi Kiania & another (Interested Parties) [2021] KEELC 1009 (KLR)

Environment and Land Court of Kenya
16 November 2021
CYC. K. Yano
4,681 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a Minister's land adjudication decision because he attacked the decision itself, not how it was made.

What this practically means

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Executive summary

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The ex parte applicant sought orders of certiorari and prohibition quashing and restraining implementation of the ruling of 24th November 2020 in Appeals to the Minister Nos. 309 and 310 of 2020, which directed that land parcels Kamarandi B Adj Sections 719 and 720 be shared equally between him and the interested parties. He claimed to have first gathered, occupied and developed the parcels since 1984, and alleged that the decision was based on erroneous and misleading information and that a land committee member related to the interested parties biased the earlier committee decision. The respondents submitted that judicial review concerns process, not merits, and that the appeal proceedings under section 29 of the Land Adjudication Act followed due process. The interested parties maintained that the land was ancestral clan land, denied the applicant's alleged developments and burials on the parcels, and asserted that all parties testified and cross-examined witnesses before the Minister. The court framed three issues: whether the suit met the purview of judicial review, whether the decision was ultra vires or breached natural justice, and whether the remedies were available. Applying settled principles that judicial review examines the decision-making process rather than the merits, the court held that the applicant attacked the merits, made only general allegations unsupported by evidence, and had not shown illegality, irrationality or procedural impropriety. His bias allegation was an afterthought since no objection to committee members was raised at the board stage. The notice of motion was dismissed with costs to the respondents and interested parties.

Key legal issues

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01

Whether the matter falls within the purview of judicial review

Holding

It does not; the decision was made pursuant to the law under section 29 of the Land Adjudication Act and the applicant attacked its merits

Reasoning

The court found that the ex parte applicant appealed to the Minister under section 29 of the Land Adjudication Act, which provides that the Minister's order shall be final. The applicant's complaints went to the merits of the decision rather than the process, so the matter could not fall within judicial review.

p. 5
02

Whether the decision was ultra vires or contrary to rules of natural justice

Holding

No; the process was fair, objective and procedural and no violation of natural justice was proved

Reasoning

The applicant alleged bias because a committee member was a relative of the interested parties, but the court noted that at the board stage parties were asked whether they had issues with committee members and none was raised, making the allegation an afterthought. General allegations unsupported by evidence cannot establish procedural impropriety.

p. 6
03

Whether judicial review remedies should issue

Holding

No; the remedies are discretionary and the application was frivolous and an abuse of court process

Reasoning

The applicant failed to demonstrate with sufficient clarity the erroneous information or lies the Minister allegedly relied on. His allegations attacked the decision itself rather than the process, disentitling him to the discretionary remedies of certiorari and prohibition.

p. 7

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits of the decision, and the court's role is supervisory rather than appellate
  • An applicant for judicial review must show the decision is tainted with illegality, irrationality or procedural impropriety

Court orders

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  1. 1.The notice of motion application dated 10th May 2021 is dismissed with costs to the respondents and the interested parties.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 23(3)(f), 40, 48, 50
  • Land Adjudication Act Cap 284 Laws of KenyaSection 29
  • Law Reform Act Chapter 26 Laws of KenyaSections 8 and 9
  • Evidence ActSection 108

Cases cited (7)

  • M'Bita Ntiro v Mbae Mwirichia & another
    (2018) eKLR
  • Zachariah Wagunza & Another v Office of the Registrar, Academic Kenyatta University & 2 others
    (2013) eKLR
  • Pastoli vs Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic Vs Kenya National Examination Council Ex parte Gathenji and others
    Civil Appeal No. 266 of 1996
  • Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    (2018) eKLR
  • Chief Constable of the North Wales Police VS Evans
    (1982) 1 WLR 1155
  • Commissioner of Lands vs Kunste Hotel Limited
    (1997) eKLR
Jurisdiction invoked
Articles 23(3)(f), 40, 48 and 50 of the Constitution of Kenya 2010 and Sections 8 and 9 of the Law Reform Act Chapter 26 Laws of Kenya

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, "Naftaly Nthedu Rubane v District Land Adjudication and Settlement Officer Tharaka South Subcountycounty & 2 others; David Muriungi Kiania & another (Interested Parties) [2021] KEELC 1009 (KLR)", Case Analysis (2021). Chuka Judicial Review Division No. E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1009/eng@2021-11-16

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