Kimwele Kithoka & 26 others v Deputy County Commissioner Kyuso Sub-County & 7 others [2022] KEELC 1841 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land appeal decision made without hearing the other side, confirming no deadline applies to constitutional petitions.
What this practically means
#Executive summary
#Key legal issues
#Whether the six-month limitation period for certiorari applied to the Petition
It did not; the Petition was a constitutional petition under Article 47 and no limitation applies to rights enforcement.
The court relied on Ngugi J and Mrima J decisions and the Court of Appeal in Chief Land Registrar v Nathan Tirop Koech to hold that the six-month timeline under Section 9(3) of the Law Reform Act and Order 53 Rule 2 applies only to common-law judicial review, not constitutional petitions. The Fair Administrative Actions Act prescribes no time limit for Article 47 claims.
Whether the appeals were filed within the 60-day window under Section 29 of the Land Adjudication Act
The 7th Respondent failed to prove timely filing; no memorandum or grounds of appeal were exhibited and the appeal numbers bore 2013.
Section 29 requires delivery of an appeal in writing specifying grounds to the Minister. A receipt for Kshs. 18,850 issued by the District Land Adjudication and Settlement Officer was insufficient proof of filing. The absence of a memorandum of appeal and the 2013 numbering of the appeals meant the 7th Respondent failed to demonstrate the appeals were lodged within 60 days of the 11th October 2012 decision.
Whether the 1st Respondent conducted the appeals lawfully
No; the Petitioners were not afforded an opportunity to be heard before the decision of 29th October 2019, breaching Articles 10 and 47.
There was no evidence of service of hearing notices or of the Petitioners appearing before the Minister in Appeal 90 of 2013, and the 6th Petitioner was not even a party. Natural justice (audi alteram partem) applies to administrative bodies; the decision was therefore unconstitutional and null and void, warranting certiorari.
Whether the 5th and 6th Respondents acted within their mandate
They violated Articles 157(11) and 238(2); with titles in dispute before civil courts, criminal process was an abuse of legal process.
Numerous civil suits over the same parcels were pending. The court held that the police should allow civil courts to determine ownership with finality rather than pursue forcible detainer charges, and restrained further arrests or prosecutions over the suit lands.
Legal principles established
#- There is no limitation period for constitutional petitions seeking enforcement of rights and fundamental freedoms, even where certiorari is sought.
- Appeals to the Minister under Section 29 of the Land Adjudication Act must be founded on written grounds of appeal; the Minister's decision must be based on the appeal record.
- Finality clauses do not oust the High Court's supervisory jurisdiction over tribunals for excess of jurisdiction or error of law.
- Administrative action must meet the constitutional test of legality, reasonableness and procedural fairness under Article 47.
Court orders
#- 1.A declaration that the 1st Respondent violated Articles 10 and 47 of the Constitution in conducting Appeals 89 and 90 of 2013 and that his decision was unconstitutional, null and void ab initio.
- 2.An order of certiorari quashing the 1st Respondent's decision dated 29th October 2019 and actions arising therefrom in Appeals 89 and 90 of 2013.
- 3.A declaration that the 5th and 6th Respondents violated Articles 157(11) and 238(2) of the Constitution in receiving, investigating and acting on the 7th Respondent's complaints.
- 4.A mandatory injunction directing the 1st, 2nd, 3rd and 4th Respondents to cancel all title deeds issued to the 7th Respondent on the basis of the quashed decision.
- 5.A mandatory injunction directing the 1st, 2nd, 3rd and 4th Respondents to comply with the findings of the Land Adjudication Officer in Objections 07–29 of 2011 dated 11th October 2012.
- 6.An order that all pending suits in respect of the suit properties be heard and determined expeditiously.
- 7.A permanent injunction restraining the 5th and 6th Respondents from arresting, charging, prosecuting or filing criminal proceedings against the Petitioners or their agents over the suit parcels.
- 8.The 7th Respondent to pay the costs of the Petition.
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution (enforcement of Bill of Rights); Article 162(2) ELC jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimwele Kithoka & 26 others v Deputy County Commissioner Kyuso Sub-County & 7 others [2022] KEELC 1841 (KLR)", Case Analysis (2022). Petition dated 19th August 2020 (ELC, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1841/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.