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ELCDismissedJudicial Review Application (Notice of Motion dated 24th May 2019)· [2022] KEELC 2721 (KLR)

Republic v Deputy County Commissioner, Kitui West Subcounty; Maithya (Exparte); Estate of Kitote Ngotho Kimonyo & another (Interested Party) (Miscellaneous Civil Application 9 of 2021) [2022] KEELC 2721 (KLR)

Environment and Land Court
23 June 2022
LKL. G. Kimani
3,822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitui dismissed a judicial review challenge, confirming the Deputy County Commissioner had jurisdiction to decide a land adjudication appeal despite the original parties having died.

What this practically means

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Executive summary

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The Ex parte Applicant, administrator ad litem of the estate of Kasuka Maithya Kalwe, sought judicial review orders of certiorari and mandamus to quash the Deputy County Commissioner, Kitui West Sub County's decision of 13 February 2019 dismissing Appeal No. 76 of 1992 concerning land parcel Mutonguni/Musengo/2781, and to direct the Registrar of Lands to remove the restriction and register the parcel in the Applicant's name. The application was anchored on Article 47 of the Constitution, the Fair Administrative Actions Act and Order 53 of the Civil Procedure Rules. The Applicant argued the Deputy County Commissioner acted in excess of jurisdiction by hearing an appeal whose parties were deceased without legal representatives, and that only a court could determine disputes over registered land. The Respondent, through State Counsel, opposed the motion as incompetent and bad in faith, noting the Applicant participated in the appeal without raising capacity issues. The court framed two issues: whether the Respondent had jurisdiction despite the parties' deaths, and whether issuance of a title deed ousting jurisdiction had been demonstrated. Relying on section 13 of the Land Adjudication Act and the Court of Appeal's decision in Dominic Musei Ikombo v Kyule Makau, the court held customary-law representatives sufficed. On the second issue, following Euton Njuki Makungo v Republic, registration during a pending Minister's appeal did not oust jurisdiction, and no title deed was exhibited - only a certificate of official search showing a restriction. The Notice of Motion dated 24 May 2019 was dismissed with costs to the Respondent, delivered at Kitui on 23 June 2022.

Key legal issues

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01

Jurisdiction of the Deputy County Commissioner to hear an appeal where the original parties were deceased and without letters of administration

Holding

The Respondent had jurisdiction; the representatives qualified under customary law

Reasoning

The court relied on section 13 of the Land Adjudication Act and the Court of Appeal decision in Dominic Musei Ikombo v Kyule Makau, holding that adjudication proceedings are not governed by strict civil litigation capacity rules and that a wife and brother appearing for the deceased parties were valid customary-law representatives.

p. 6
02

Jurisdiction to determine an appeal where registration of the suit land had been effected and a restriction registered

Holding

The Respondent had jurisdiction; registration remained subject to the pending appeal and no title deed was proved

Reasoning

Sections 27 and 28 of the Land Adjudication Act and section 76 of the Land Registration Act show that registration upon finalisation of the adjudication register is subject to appeals, with restrictions enduring until determination. Following Euton Njuki Makungo v Republic, an appeal to the Minister gives jurisdiction despite registration; the Applicant exhibited only an official search, not a title deed.

p. 8

Legal principles established

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  • Persons appearing for deceased parties in land adjudication proceedings may qualify as representatives under African customary law without letters of administration
  • A Registrar has no jurisdiction to issue a title deed while an appeal to the Minister under the Land Adjudication Act is pending; the judicial remedy of certiorari is not designed to settle ownership disputes or confer title to land

Court orders

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  1. 1.The Ex-parte Applicant's Notice of Motion dated May 24, 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 47
  • Fair Administrative Actions Act, 2015Sections 3, 4, 5, 6, 7, 8 (including 7(2))
  • Civil Procedure Rules 2010Order 53 Rules 1 and 2
  • Land Adjudication ActSections 13(5), 13, 24-28, 27(3), 28, 29
  • Land Registration Act No. 3 of 2012Section 76

Cases cited (4)

  • Pastoli v Kabale District Local Government Council & others
    [2008] 2 EA
  • Dominic Musei Ikombo v Kyule Makau
    [2019] eKLR
  • Euton Njuki Makungo v Republic & 2 others
    [2014] eKLR
  • R – v- Lancashire County Council Ex p Gayer
    (1980) 1 WLR 1024
Jurisdiction invoked
Article 47 of the Constitution of Kenya 2010; Sections 3, 4, 5, 6, 7, 8 of the Fair Administrative Actions Act, 2015; Order 53 Rules 1 and 2 of the Civil Procedure Rules 2010

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 Deputy County Commissioner, Kitui West Subcounty; Maithya (Exparte); Estate of Kitote Ngotho Kimonyo & another (Interested Party) (Miscellaneous Civil Application 9 of 2021) [2022] KEELC 2721 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated 24th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2721/eng@2022-06-23

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