Republic v Attorney General & another Ex Parte Michael Mwirigi; Celina Nkirote & 2 others (Interested Parties) [2022] KEELC 2123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the objection proceedings offended fair hearing rights
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.
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.
Whether the 1st respondent had jurisdiction
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.
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.
Whether exhaustion of internal remedies was required
No; the court had earlier ruled on a preliminary objection that exhaustion was not required, and judicial review lay.
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.
Legal principles established
#- 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
#- 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.Mandamus compelling the 1st respondent to rehear Objection No. 438 – Ruiri Rwarera Adjudication Section with the participation of the exparte applicant
- 3.Costs to the exparte applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.