Judicial Review (exparte applicant as legal representative of the estate of M'Thiringi M'Anampiu) v Land Adjudication & Settlement Officer & others
The bottom line
#Kenya's Environment and Land Court quashed a land adjudication officer's decision because the family disputing it never got a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Timeliness under Section 8 & 9 of the Law Reform Act and Order 53 Rule 2
The application was filed in time because judicial review is commenced by the application for leave, which was filed within six months; the notice of motion followed the court's directions under Order 53 Rule 3(1).
The six-month period would expire on November 25, 2021. The chamber summons for leave was filed on May 7, 2021, within the period, and leave was granted with the notice of motion to follow within 21 days. The notice of motion was filed May 27, 2021 in compliance. The authorities relied on by the respondents were distinguishable.
Applicability of Article 47 and the Fair Administrative Actions Act alongside Law Reform Act remedies
Section 12 of the FAAA makes it complementary to judicial review writs; an applicant may choose either route and may not be penalised for fusing them. The court may examine merits post-2010.
The court noted Article 47 and Article 23 of the 2010 Constitution expanded judicial review remedies and that Section 12 of the FAAA applies as a complement to common law writs, moving away from the process-only approach in Municipal Council of Mombasa vs Umoja Consultants.
Whether the decision dismissing the objections met the constitutional and statutory test for fair administrative action
It did not: the land adjudication committee's involvement was not demonstrated, the scene visit proceedings were not recorded, and no finding was made on the alternative land to which the applicants were allegedly moved.
Section 26 of the Land Consolidation Act requires committee involvement in objection proceedings. The record did not show committee presence at the scene visit, findings or decision, nor any visit to the parcel the applicants were allegedly moved into. The failure to respond to the demand for sketch maps also offended the FAAA and Article 35.
Legal principles established
#- Judicial review proceedings are commenced by an application for leave, not the notice of motion, and the six-month period runs from the decision complained of; leave sought within that period satisfies Section 8 & 9 of the Law Reform Act and Order 53 Rule 2.
- A party may invoke either the Fair Administrative Actions Act or the Law Reform Act/Order 53 route, and cannot be penalised for fusing the two.
- Post-2010, the court may examine not only the decision-making process but also the merits and demerits of the decision under the Fair Administrative Actions Act.
- Once a demand letter for reasons/information is made, a state organ must respond within 30 days; unexplained failure attracts adverse inference.
Court orders
#- 1.The decision dated November 25, 2020 by the 1st respondent dismissing objections No's 3084 and 3086 over Parcels No's 11136 and 7770 Karama Adjudication Section is quashed
- 2.The respondents are directed to rehear the objections afresh before another land committee within 6 months from the date of the order
- 3.Costs to the exparte applicants
- Jurisdiction invoked
- Article 47 of the Constitution; Sections 8 & 9 of the Law Reform Act; Order 53 Civil Procedure Rules; Fair Administrative Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Review (exparte applicant as legal representative of the estate of M'Thiringi M'Anampiu) v Land Adjudication & Settlement Officer & others", Case Analysis (2022). Not stated in judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2590/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.