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ELCPartially AllowedJudicial Review Application (Chamber Summons dated 24th July 2018; Notice of Motion dated 7th August 2018)· [2021] KEELC 2383 (KLR)

Republic v Tigania East District Land Adjudication and Settlement Officer & another Ex parte Joseph Kubai Tarichia; Peter Mukondo (Interested Party) [2021] KEELC 2383 (KLR)

Environment and Land Court
28 July 2021
3,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a land adjudication officer's decision because he decided land objections without the Committee the law requires him to involve.

What this practically means

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Executive summary

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The Ex-parte Applicant, brother of the deceased Interested Party, sought judicial review orders of certiorari to quash the judgement of the Land Adjudication and Settlement Officer, Tigania East, delivered on 5th June 2018 in Objection Nos. 414 and 417 over Land Parcel Nos. 1681 and 750 in the Karama Adjudication Section, together with leave granted to operate as a stay. He contended that the objections were heard without the Committee mandated under Section 26 of the Land Consolidation Act (Cap 283), that he was denied the opportunity to call witnesses, and that the interpreter used was biased as a friend of the Interested Party. The 1st Respondent denied breach of the statute, asserting no complaint was raised at the time, while the substituted Interested Parties (sons of the deceased, administrators Ad Litem) argued the Applicant was aggrieved only by the outcome and not the process. The court applied the settled principle that judicial review examines process, not merits. It framed two issues: whether the procedure was flawed for want of Committee involvement, and whether certiorari was warranted. It held that the Adjudication Officer erred in determining the objections alone without the Committee, contrary to Section 26(1), rendering the process amenable to certiorari; but that the natural justice allegations failed, both parties having been heard with one witness each and no evidence of flawed interpretation. Because the judgement of 5th June 2018 issued from joint proceedings over seven objections tainted by the same illegality, the court extended certiorari to the entire judgement rather than only the two objections selectively challenged, and remitted the matter to the Land Adjudication and Settlement Officer for hearing and determination in accordance with the law. Judgment was delivered virtually at Garissa on 28th July 2021.

Key legal issues

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01

Whether failure to involve the Committee under Section 26 of the Land Consolidation Act vitiated the objection proceedings

Holding

Yes - the Adjudication Officer erred in determining the objections alone without the Committee, contrary to Section 26(1), rendering the process flawed

Reasoning

Section 26 of the Land Consolidation Act prescribes a four-part objection process, the second of which requires the Adjudication Officer to consider the objection together with the Committee appointed under Section 9 of the Act. The court found from the record that this requirement was not complied with, the Officer having considered and determined the objection on his own without the presence of the Committee. This made the decision-making process amenable to certiorari.

p. 4
02

Whether the proceedings breached natural justice by denying the Applicant the chance to call witnesses and by using an allegedly biased interpreter

Holding

No - the record showed both parties were heard, each called a witness and cross-examined; the bias allegation was unsupported and not raised at the time

Reasoning

From the proceedings it was clear that both the Ex Parte Applicant and the deceased Interested Party had the opportunity to be heard, each brought a witness and cross-examined the opposing testimony. The allegation of a biased interpreter was not supported by any evidence of flawed interpretation, and the Applicant had not raised the issue during the objection proceedings, making the claim untenable.

p. 5
03

Scope of certiorari - whether it should extend to all seven objections or only the two selectively challenged

Holding

Certiorari extended to the entire judgement over all seven objections because the joint proceedings were tainted by the same illegality

Reasoning

The judgement for all the objections was delivered consequent to joint proceedings determining all of them, and that process was found marred by illegality in relation to Sections 9 and 26 of the Land Consolidation Act. The court therefore declined to limit the quashing order to Objection Nos. 414 and 417 as selectively prayed by the Applicant, and instead quashed the entire judgement.

p. 5

Legal principles established

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  • The Adjudication Officer must consider an objection together with the Committee appointed under Section 9 of the Land Consolidation Act; deciding an objection alone under Section 26 renders the process flawed and amenable to certiorari
  • Judicial review concerns process, not merits; the reviewing court cannot substitute its own decision for that of the decision maker

Court orders

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  1. 1.An order of certiorari to quash the entire judgement of the Land Adjudication and Settlement Officer, Tigania East District issued on 5th June 2018 relating to Objection Nos. 411, 412, 413, 414, 416, 417 & 1385 in reference to Parcel Nos. 7259, 5939, 5115, 1618, 5940, 750 & 2526, not merely Objection Nos. 414 and 417.
  2. 2.The matter remitted to the Land Adjudication and Settlement Officer, Tigania East District, for hearing and determination in accordance with the law.

Authorities

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Legislation

  • Law Reform Act (Cap 26 Laws of Kenya)Sections 8 & 9
  • Civil Procedure RulesOrder 53 Rule 1
  • Land Consolidation Act (Cap 283)Sections 9, 21, 25, 26(1)
  • Land Adjudication Act (Cap 284)-

Cases cited (9)

  • Republic Vs Attorney General & 4 others Ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
    [2014] eKLR
  • Municipal Council of Mombasa Vs Republic & Umoja Consultants Limited, Nairobi Civil Appeal No. 185 of 2001
    [2002] eKLR
  • Republic Vs M'nchebere M'ithae & Another, Meru HC Misc. No. 101 of 2008
  • Republic Vs Gervasio Mugambi Thitura & 2 Others, Meru HC Misc. JR No. 58 of 2009
  • Peter Kimandiu Vs Land Adjudication Officer, Tigania West District, Zaverio Mithika & 3 Others, Nyeri Civil Appeal No. 28 of 2015
    [2016] eKLR
  • Egal Mohamed Osman Vs Inspector General of Police & 3 Others
    [2015] eKLR
  • The Management of Committee of Makondo Primary School and Another Vs Uganda National Examination Board, HC Civil Misc. Application No. 18 of 2010
  • Msagha Vs Chief Justice & 7 Others, Nairobi HCMCA No. 1062 of 2004
    [2006] 2 KLR 553
  • Suchan Investment Limited Vs Ministry of National Heritage & Culture & 3 others
    (2016)
Jurisdiction invoked
Section 8 & 9 of the Law Reform Act (Cap 26) and Order 53 Rule 1 of the Civil Procedure Rules

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 Tigania East District Land Adjudication and Settlement Officer & another Ex parte Joseph Kubai Tarichia; Peter Mukondo (Interested Party) [2021] KEELC 2383 (KLR)", Case Analysis (2021). Judicial Review Application (Chamber Summons dated 24th July 2018; Notice of Motion dated 7th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2383/eng@2021-07-28

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