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ELCStruck OutJudicial Review (Notice of Motion dated 11th December, 2019)· [2021] KEELC 3356 (KLR)

Republic v Deputy County Commissioner Makueni Sub-County & 3 others Ex parte David Muindi Ngwava; Dorcus Kalondu Masaku (sued as the legal representative of the Estate of Masaku Kitemwa Kitika Deceased) & another (Interested Parties) [2021] KEELC 3356 (KLR)

Environment and Land Court
11 May 2021
CMC.G. MBOGO
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land judicial review case because the applicant lacked a grant of administration to sue over a deceased relative's land.

What this practically means

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Executive summary

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The ex-parte Applicant sought judicial review orders of certiorari to quash the 1st Respondent's ruling of 23rd October 2019 dismissing his Minister's Appeal No. 50 of 2013 (an appeal under Section 29(1) of the Land Adjudication Act concerning Plot No. 739 Kasunguni Adjudication Section), and of prohibition restraining the 2nd and 3rd Respondents from subdividing and transferring the plot to the administration compound. His complaint was that his appeal was never considered, the hearing was conducted by an unauthorized person, and the area Chief, an interested party, sat as secretary. The Respondents opposed via Grounds of Opposition, contending that the Applicant lacked locus standi, having no authority to sue on behalf of any deceased person's estate, and that his pleadings were vague and the application an abuse of process. The court framed a single issue: whether the Applicant had locus standi under the Civil Procedure Act. It held that a right of action over land accrues only from contract, registration, a registered power of attorney, receivership, statutory power of sale, or legal representation of a deceased's estate, none of which the Applicant possessed. Following the Court of Appeal's decision in Euton Njuki Makungo, the court held that proceedings under the Land Adjudication Act and the Civil Procedure Act are distinct regimes, so his informal representation of the estate conferred no standing. The substantive merits were not considered. The Notice of Motion was struck out with costs to the Respondents.

Key legal issues

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01

Locus standi of the ex-parte Applicant to bring judicial review proceedings over Plot No. 739

Holding

The Applicant lacked locus standi as he was neither a registered proprietor, holder of a power of attorney, nor a duly appointed administrator of the estate of his father or grandmother

Reasoning

Proceedings under the Civil Procedure Act and the Land Adjudication Act are distinct regimes. A right of action over land accrues from contract, registration, registered power of attorney, receivership, statutory power of sale or legal representation of a deceased's estate. The Applicant sued on behalf of his father's or grandmother's estate but produced no evidence of a grant of administration, and his mere representation of the estate within the adjudication process did not confer standing under the Civil Procedure Act. The court relied on Euton Njuki Makungo -Vs- Republic.

p. 3

Legal principles established

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  • No person can deal with or sue over land of another in judicial review proceedings under the Civil Procedure Act unless duly authorized, e.g. as registered proprietor or legal representative of a deceased proprietor's estate

Court orders

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  1. 1.The Notice of Motion dated 11th December, 2019 be struck out with costs to the Respondents

Authorities

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Legislation

  • Law Reform ActSection 9
  • Civil Procedure RulesOrder 53 Rule 1
  • Land Adjudication Act Cap 284Section 29(1)
  • Civil Procedure Actnull
  • Fair Administrative Action Actnull
  • Constitution of Kenyanull

Cases cited (3)

  • Municipal Council of Mombasa -Vs- Republic & Umoja Construction Ltd
    Civil Appeal No. 185 of 2001
  • Republic -Vs- Secretary of the Firearms Licensing Board & 2 others Ex-parte Senator Johnson Muthama
    [2018] eKLR
  • Euton Njuki Makungo -Vs- Republic & 2 others
    [2014] eKLR
Jurisdiction invoked
Section 9 of the Law Reform Act 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 Deputy County Commissioner Makueni Sub-County & 3 others Ex parte David Muindi Ngwava; Dorcus Kalondu Masaku (sued as the legal representative of the Estate of Masaku Kitemwa Kitika Deceased) & another (Interested Parties) [2021] KEELC 3356 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 11th December, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3356/eng@2021-05-11

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