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ELCAllowedJudicial Review (Notice of Motion dated 18.2.2021) re A/R Objection No. 3279· [2022] KEELC 257 (KLR)

Republic v Sub-County Land Adjudication Officer Ex parte John Kobia Mungania; Catherine Mwonjiru Mutiga (Interested Party) [2022] KEELC 257 (KLR)

Environment and Land Court
30 March 2022
3,483 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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A Kenyan court quashed a land adjudication officer's decision because he ruled alone without the required committee's input, confirming officials must follow due process.

What this practically means

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Executive summary

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The ex-parte applicant, John Kobia Mungania, sought an order of certiorari to quash the proceedings and decision of the Land Adjudication Officer in A/R Objection No. 3279 concerning LR Nos. 7040 and 7041 Karama Adjudication Section. The objection, lodged by the interested party on behalf of her husband alleging encroachment, had been decided on 23.11.2020 by directing that the two parcels be merged and subdivided equally - a remedy the applicant contended went beyond the objection and evidence, and which was reached without the land adjudication committee's participation. The respondent opposed, arguing the applicant misconstrued Section 21(2) of the Land Consolidation Act, failed to supply the record to be quashed, and that certiorari was not the efficacious remedy given the multi-stage consolidation process. The interested party maintained due process was followed, including a locus visit. Framing three issues - the post-2010 parameters of judicial review, compliance with the law in handling the objection, and whether quashing was warranted - the court held that judicial review is now a constitutional remedy under Article 47 and the Fair Administrative Action Act, allowing wider inquiry than pre-2010 decisions. Since the respondent filed only grounds of opposition with no evidence on oath, and the officer decided unilaterally without the committee's deliberation or signatures, compliance was not demonstrated. The notice of motion was allowed: the impugned proceedings and decision were quashed, with costs to the ex-parte applicant.

Key legal issues

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01

Post-2010 parameters of judicial review

Holding

Judicial review post-2010 is a constitutional remedy under Article 47 and the Fair Administrative Action Act, permitting wider inquiry into merits and reliefs than pre-2010 common law review.

Reasoning

The court traced Articles 47, 48 and 50 and Sections 4, 5, 6, 7, 9, 11 and 12 of the Fair Administrative Action Act, holding that the Act supplements common-law review and that decisions such as Municipal Council of Mombasa and Pastoli pre-dating the Constitution no longer limit the scope of review. The procedure in Section 26 of the Land Consolidation Act itself contemplates judicial review, so the application was properly before the court.

p. 4
02

Compliance with the Land Consolidation Act and fair administrative action in the A/R objection

Holding

The respondent failed to demonstrate that the decision complied with Section 4 of the Fair Administrative Action Act read with Section 21 of the Land Consolidation Act; the officer acted without the land adjudication committee's deliberation and signatures.

Reasoning

The respondent filed only grounds of opposition with no evidence on oath confirming compliance. The committee members were present but there was no record of their participation or signatures on the decision, and the decision to merge and equally subdivide the parcels went beyond the objection and evidence of the interested party. The court therefore found the process flawed.

p. 4
03

Quashing of the impugned proceedings and decision

Holding

Certiorari issued to quash the proceedings and decision in A/R Objection No. 3279.

Reasoning

Having found the decision was made in excess of jurisdiction, without committee participation, and contrary to the rules of natural justice and fair administrative action, the court concluded the notice of motion had merit and granted the judicial remedy of certiorari.

p. 4

Legal principles established

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  • After the 2010 Constitution, judicial review is a constitutional remedy and the court's supervisory reach extends beyond the narrow common-law parameters, informed by Article 47 and the Fair Administrative Action Act.
  • An ex-parte applicant may elect judicial review under Article 47 and the Fair Administrative Action Act or under Order 53 Rule 1 CPR read with Sections 8 and 9 of the Law Reform Act.
  • The duty to follow the law in administrative adjudication rests on the administrator, not on the parties, and the administrator must evidence compliance with fair administrative action requirements.
  • The land adjudication officer may not unilaterally hear, determine and pronounce a decision under Section 21 of the Land Consolidation Act without deliberation with, and concurrence of, the land adjudication committee.

Court orders

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  1. 1.Judicial review order of certiorari calling for and quashing the proceedings and the decision made by the respondent in A/R Objection No. 3279 relating to LR No. 7040 & 7041 Karama Adjudication Section
  2. 2.Costs of the notice of motion awarded to the ex-parte applicant

Authorities

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Legislation

  • Land Consolidation ActSections 7, 9(1), 13(1), 14(2)(5), 21(2), 21(b), 26(1)
  • Fair Administrative Action ActSections 2, 3, 4, 4(5), 5(2)(b), 6, 7, 7(2), 8(1), 9, 9(2), 11, 12
  • Constitution of KenyaArticles 22(3), 25(c), 262, 35, 47, 48, 50
  • Evidence Act Cap 80Sections 107, 108, 109, 112
  • Civil Procedure RulesOrders 11 and 53, Order 53 Rule 1
  • Law Reform Act Cap 26Sections 8 and 9
  • Access to Information ActNot specified

Cases cited (13)

  • Kenya Pharmaceutical Association and another -vs- Nairobi City County and 46 other County Governments & another
    (2017) eKLR
  • Republic -vs- Chairman L.D.T and another exparte William Nyangau Ongwae and 4 others
  • M'bita Ntiro -vs- Mbae Mwirichia & another
    (2018) eKLR
  • Pastoli -vs- Kabale District Local Government Council and others
    [2008] 2 EA 300
  • Land Adjudication and Settlement Officer Tigania East Exparte Simon Mugambi Nabea; Alexander Meme Kajoi (IP)
    (2021) eKLR
  • Municipal Council of Mombasa -vs- Republic and Umoja Consultants Ltd
    (2002) eKLR
  • Gladys Boss Shollei -vs- JSC
    (2022) eKLR
  • Humphrey Makokhn Nyongesa & another vs Communication Authority of Kenya & 2 others
    (2018) eKLR
  • Kimotho vs KCB
    2003 1 E.A 108
  • Re -vs- Chairman Joshua Charo Kazungu
    supra
  • IEBC -vs- Stephen Mutinda Mule
    (2014) eKLR
  • Daniel Toroitich -vs- Mwangi Stephen Murithi
    (2014) eKLR
  • Peter Kimandiu -vs- Land Adjudication Officer & 5 others
    [2015] eKLR
Jurisdiction invoked
Article 47 of the Constitution and the Fair Administrative Action Act, read with Order 53 of the Civil Procedure Rules and Section 8 and 9 of the Law Reform 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 Sub-County Land Adjudication Officer Ex parte John Kobia Mungania; Catherine Mwonjiru Mutiga (Interested Party) [2022] KEELC 257 (KLR)", Case Analysis (2022). Judicial Review (Notice of Motion dated 18.2.2021) re A/R Objection No. 3279. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/257/eng@2022-03-30

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