Kalundi Mutua v Simon Mutuli Kang’e & 4 others [2022] KEELC 356 (KLR)
The bottom line
#Kenya's Land Adjudication Act appeal process survived a constitutional challenge because the farmer could not prove any actual violation of her rights.
What this practically means
#Executive summary
#Key legal issues
#Joinder of a deceased person's estate
The claim against the 2nd Respondent was incompetent and the 2nd Respondent and alleged representative were struck out
A suit cannot be brought against a deceased person. Under Section 79 of the Law of Succession Act, property of a deceased vests in the executor or personal representative, and action can only be maintained against such representative. The Petitioner did not show that Kitani Mutia Musyimi held letters of administration, and Daniel Mutua Musyimi denied being the administrator, which was not contested.
Jurisdiction of the ELC to hear the constitutional petition
The Petition was properly before the court
The court held it was clothed with jurisdiction under Articles 23 and 165(3) to ascertain infringement of fundamental rights and even grant judicial review orders, so the Petition was not bad merely because it was not framed as judicial review, despite the finality of the Minister's decision under Section 29.
Alleged unlawful delegation and inclusion of elders and the technical officer
The inclusion of the three elders was lawful and no unlawful delegation was proved
Regulations 10 and 11 of the Land Adjudication Regulations 1970 permit the appointment of interpreters and assessors to advise on customary land law, and Regulation 11(3) provides the Minister determines the appeal after consultation with assessors. The proceedings' quorum did not show the 4th Respondent (Land Adjudication Officer, Mwingi) participated, and the Petitioner did not prove the officer who heard the objections sat in the appeal.
Site visit conducted by elders in the 3rd Respondent's absence and the Kshs. 5,000 payment
No constitutional violation found; the Petitioner participated in and agreed to the procedure
Although the judgment referred to a site visit the record did not show, the Petitioner knew the elders were to visit and report, was offered a choice between waiting for official funds or paying, and opted to pay. Having actively promoted that procedure she could not complain it violated her rights, and the final decision was made by the 3rd Respondent as required.
Constitutionality of Section 29 of the Land Adjudication Act
Section 29 was not shown to be unconstitutional
Applying the presumption of constitutionality and the purpose-and-effect test, the court found Section 29 provides a dispute-resolution avenue at the apex of the adjudication process; regulations provide procedure; the Constitution and Fair Administrative Action Act bind the Minister and his delegates regardless; and the Petitioner's complaints were personal to her case and unsupported by evidence.
Petition overtaken by events
The court found implementation had occurred but held it could still grant declaratory relief if merited; since the Petition failed on merit, no relief issued
The land had been registered, subdivided into 136 parcels and titled. The court noted equity does nothing in vain but agreed declaratory orders without coercive force remain available; the Petition nonetheless failed on its merits.
Legal principles established
#- A suit cannot be instituted against a deceased person; legal action relating to a deceased's estate can only be maintained against the personal representative or executor who has taken out letters of administration
- The Minister's power to hear appeals under Section 29 of the Land Adjudication Act may lawfully be exercised with the assistance of interpreters and assessors appointed under the Land Adjudication Regulations; such assistance is not an unlawful delegation or abdication
- There is a general but rebuttable presumption that a statute is constitutional, and the burden lies on the person alleging unconstitutionality to prove it
- Constitutionality of a statutory provision is assessed by examining both its purpose and the effect of its implementation
- Determinations of rights and interests in land within a declared adjudication section must be made through the adjudication process under the Land Adjudication Act, not by clan or other forums
Court orders
#- 1.The claim against the 2nd Respondent was declared incompetent for having been filed against a deceased person and a representative not shown to be a personal representative or executor, and the names of the 2nd Respondent and the alleged representative were struck out from the suit with costs
- 2.A declaration that the Petitioner failed to prove that the process of administrative action and proceedings of the adjudication adopted by the 3rd Respondent were inconsistent with or in contravention of the law and in violation of Articles 25(c), 47(1), 50(1) and 159(1) and (2) of the Constitution
- 3.A declaration that the Petitioner failed to prove that the proceedings and verdict of the 3rd Respondent were in violation of fundamental rights
- 4.A finding that the Petitioner did not prove that Section 29 of the Land Adjudication Act lacks a legal, institutional and financial policy framework or conflicts with Articles 10(1) and (2), 19, 20, 21, 22, 47(1), 50(1) and 159(1) and (2) of the Constitution
- 5.A finding that the Petitioner did not prove that Section 29 of the Land Adjudication Act has not been revised/amended to accord with fair trial and fair administrative action standards
- 6.The Petition was dismissed with costs to the Respondents
- Jurisdiction invoked
- Articles 22, 23 and 165(3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalundi Mutua v Simon Mutuli Kang’e & 4 others [2022] KEELC 356 (KLR)", Case Analysis (2022). ELC Petition No. 8 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/356/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.