Republic v Deputy County Commissioner Kitui West Sub-County & 3 others Ex parte William Mulwa Makiti; Benrodgers Mwendwa Milai (Interested Party) [2022] KEELC 1394 (KLR)

The court acknowledged conflicting judicial approaches: some judges apply the six-month rule strictly (Mativo J in the Mer Security case), while the Court of Appeal in Stephen Kibowen held that a nullity cannot trigger a statutory bar. Adopting the latter, the court held that whether the decision was a nullity had to await full hearing; since the challenge raised jurisdiction and nullity questions, leave stood. On the merits the court later found the Minister's proceedings a nullity.

The objection determination was delivered on 14th April 1987, with a 60-day right of appeal under Section 29(1) of the Land Adjudication Act. No memorandum of appeal or filing receipt was produced to show the filing dates, but the serialization of case numbers showed both appeals were lodged in 1991. Following Kimwele Kithoka, the court found the appeals out of time, so the Minister lacked jurisdiction and the proceedings were a nullity liable to be quashed.

The proceedings before the Deputy County Commissioner recorded that the two parties were summoned three times, with the Ex-parte Applicant failing to attend on any date, citing work commitments, and even proposing hearing dates himself. The court found no requirement under the Land Adjudication Act for an affidavit of service in an appeal before the Minister, since Section 12's civil-suit procedure applies only to the adjudication officer, per Timotheo Makenge.

No copy of the title deed or official search was produced. Even if the title existed, the Land Adjudication Officer's ruling of 14th April 1987 awarded the Ex-parte Applicant a portion of parcel 802, which became parcel 3344; the appeal against that ruling would encompass that portion. The court thus declined to make orders in relation to the title and dismissed Prayers 2 and 3.