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ELCAllowedJudicial Review (Notice of Motion dated 1.2.2021)· [2022] KEELC 2123 (KLR)

Republic v Attorney General & another Ex Parte Michael Mwirigi; Celina Nkirote & 2 others (Interested Parties) [2022] KEELC 2123 (KLR)

Environment and Land Court
19 January 2022
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a land adjudication decision made without notifying a deceased owner's family, ordering the objection be heard afresh with their participation.

What this practically means

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Executive summary

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The ex-parte applicant, legal representative of a deceased registered owner of Parcel 3273 Ruiri/Rwarera Adjudication Section, moved the court by notice of motion dated 1.2.2021 seeking certiorari to quash the award in Objection No. 438 delivered on 22.7.2020 by the adjudication officer and mandamus compelling a rehearing with his participation. The deceased had died on 30.7.2006, well before the objection was heard, and his family was unaware of the proceedings. The respondents opposed mainly on the leave-as-stay issue; Celina Nkirote Moses contended summons were duly served through the area chief, that the applicant never attended, that he failed to appeal to the Minister within 60 days, and that internal mechanisms under Cap 284 had to be exhausted. The 1st and 2nd interested parties, themselves condemned unheard, supported the motion. The court framed three issues: fair hearing, jurisdiction, and the standing of the supporting interested parties. It found the deceased was dead when the objection was determined with no representation and no proof of service, the onus being on the adjudication officer. The officer also determined adverse possession claims outside his jurisdiction, made findings on undisclosed documents and titled parcels, and visited the locus in quo without notice, going on a frolic of his own. The court held letters of administration were unnecessary for locus standi before the adjudication committee under Section 13 of the Land Adjudication Act. The court allowed the motion, granting certiorari to quash the award and mandamus for a rehearing, with costs to the ex-parte applicant.

Key legal issues

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01

Whether the objection proceedings offended fair hearing rights

Holding

Yes; the deceased owner was dead when the objection was heard and determined and was not represented, and other affected owners were given no notice.

Reasoning

Article 47 guarantees fair administrative action and the Fair Administrative Actions Act, especially Section 4, requires prior notice and an opportunity to be heard. The respondents did not deny the averments that the deceased was dead by 22.7.2020 and no summons served on any family head was produced. An interested party cannot answer for the adjudication officer's statutory duties.

p. 3
02

Whether the 1st respondent had jurisdiction

Holding

The 1st respondent exceeded his jurisdiction by dealing with adverse possession claims, parcels with issued title deeds, undisclosed documents and an un-notified locus visit.

Reasoning

Adverse possession falls under Sections 70 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, not Section 26 of the Land Adjudication Act. Cancellation of title deeds is the preserve of courts. The officer also made undisclosed findings and visited the locus in quo without notice to all disputants, going beyond his mandate.

p. 4
03

Whether exhaustion of internal remedies was required

Holding

No; the court had earlier ruled on a preliminary objection that exhaustion was not required, and judicial review lay.

Reasoning

The court had made a determination on the preliminary objection as to jurisdiction and found no merit in the contention that the applicant ought to have exhausted the procedures under Sections 26 and 29 of the Land Adjudication Act and Land Consolidation Act. The application was also made within a reasonable period under Section 9 of the Fair Administrative Actions Act.

p. 3

Legal principles established

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  • Section 13 of the Land Adjudication Act refers to a guardian or representative according to African customary law, not a legal representative under the Law of Succession Act, so letters of administration are not necessary for locus standi before an adjudication committee.
  • The onus of proving compliance with the requirement of fair hearing rests on the adjudicating officer.
  • An adjudication officer has no jurisdiction to determine claims of adverse possession, which are governed by the Limitation of Actions Act and Order 37 of the Civil Procedure Rules.

Court orders

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  1. 1.Certiorari to quash the decision and/or award delivered on 22.7.2020 by the 1st respondent in Objection No. 438 Ruiri/Rwarera Adjudication
  2. 2.Mandamus compelling the 1st respondent to rehear Objection No. 438 – Ruiri Rwarera Adjudication Section with the participation of the exparte applicant
  3. 3.Costs to the exparte applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 47; Article 23(3) and (4)
  • Fair Administrative Actions ActSections 4, 5, 9 (and 9(1))
  • Commission on Administrative Justice Act No. 23 of 2011Section 55
  • Land Adjudication ActSections 12, 13, 26 (and 29 read with Land Consolidation Act)
  • Land Consolidation Act (Cap 283)
  • Land Adjudication Act (Cap 284)
  • Law of Succession Act (Cap 160)Section 3
  • Limitation of Actions ActSections 38 and 70
  • Civil Procedure RulesOrder 37
  • Land Registration Act

Cases cited (14)

  • Republic –vs- National Land Commission & Another Exparte Krystalline Salt Ltd
    [2015] eKLR
  • Municipal Council of Mombasa –vs- Republic & Umoja Consultants Ltd
    [2003] eKLR
  • Onyango Oloo –vs- Attorney General
    [1989] EA 456
  • Dominic Musei Ikombo –vs- Kyule Makau
    [2019] eKLR
  • Judicial Service Commission -vs- Mbalu Mutava & Another
    [2015] eKLR
  • Republic –vs- Registrar of Companies Exparte Githungo
    [2001] KLR 299
  • Republic –vs- Kenya Power & Lighting Co. Ltd. & Another
    [2013] eKLR
  • D.K. Njagi Marete –vs- Land Adjudication Officer
    [2013] eKLR
  • Choitram –vs- Mystery Model Hair Saloon
    [1972] EA 525
  • Kenya Human Rights Commission & Another –vs- Non Governmental Organization Coordination Board and Another
    [2018] eKLR
  • Law Society Kenya –vs- Rights and Democracy & 13 Others
    [2013] eKLR
  • Josphat Nyaga Makembo & 2 Others –vs- Attorney General & 4 Others
    [2016] eKLR
  • International Centre for Policy and Conflict & Others –vs- Attorney General & Others
    [2013] eKLR
  • Republic –vs- Non Governmental Organizations Coordination Board Exparte Evans Kidero Foundation
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Article 23(3) and (4) of the Constitution read with Section 5 of the Fair Administrative Actions Act, 2015

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 Attorney General & another Ex Parte Michael Mwirigi; Celina Nkirote & 2 others (Interested Parties) [2022] KEELC 2123 (KLR)", Case Analysis (2022). Judicial Review (Notice of Motion dated 1.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2123/eng@2022-01-19

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