Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Application (Notice of Motion dated May 24, 2019)· [2022] KEELC 2723 (KLR)

Republic v Deputy County Commissioner, Kitui West Subcounty; Malonza (Exparte) (Miscellaneous Civil Application 10 of 2021) [2022] KEELC 2723 (KLR)

Environment and Land Court
23 June 2022
LKL. G. Kimani
3,974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court upheld a land adjudication appeal decided after the original parties died, ruling customary family representatives could pursue it without letters of administration.

What this practically means

#

Executive summary

#
The ex parte Applicant, Elizabeth Ndune Malonza, widow and representative of the estate of the deceased appellant in Appeal to the Minister No. 17 of 2008, sought judicial review orders of certiorari to quash the Deputy County Commissioner, Kitui West Sub County's decision of February 13, 2019 dismissing that appeal, and mandamus directing the Registrar of Lands to remove the restriction on Land Parcel Mutonguni/Musengo/2784 and register it in her name. She argued the Deputy County Commissioner acted in excess of jurisdiction by hearing the appeal when both original parties were deceased and without letters of administration, and lacked jurisdiction because the land was already registered. The Respondent, through the Attorney General, opposed via grounds of objection, contending the motion was defective, that both parties were alive when the appeal was lodged, that the applicant participated and never sought adjournment, and that quashing the appeal would not alter the registration since the underlying objection proceedings awarded the land to Kitote Ngotho Kimonyo. The court framed two issues: jurisdiction despite the parties' deaths, and jurisdiction despite registration. Relying on Sections 12(1) and 13(5) of the Land Adjudication Act and the Court of Appeal decisions in Dominic Musei Ikombo v Kyule Makau and Euton Njuki Makungo v Republic, Justice L. G. Kimani held that customary-law representatives need not hold letters of administration in adjudication proceedings, and that registration pending an appeal carries a restriction enduring until the appeal is determined, so the 1st Respondent had jurisdiction. Noting no title deed was exhibited, the court found no illegality, irrationality or procedural impropriety and dismissed the motion with costs to the Respondent.

Key legal issues

#
01

Whether the Deputy County Commissioner had jurisdiction where the original parties to the appeal were deceased and unrepresented by holders of letters of administration

Holding

He had jurisdiction; the representatives qualified under customary law

Reasoning

The court relied on Section 12(1) and 13(5) of the Land Adjudication Act, which permit flexibility and treat attendance of some successors as attendance of all, and on the Court of Appeal decision in Dominic Musei Ikombo v Kyule Makau, holding that strict rules of capacity in civil litigation do not apply to adjudication proceedings. The wife of the deceased appellant and brother of the deceased respondent qualified as customary-law representatives.

p. 6
02

Whether registration of the land and issuance of a title defeated the 1st Respondent's appellate jurisdiction

Holding

Jurisdiction existed; no title deed was exhibited, only a certificate of official search showing registration subject to a restriction enduring until determination of the appeal

Reasoning

Sections 27-28 of the Land Adjudication Act and Section 76 of the Land Registration Act show registration is effected subject to pending appeals, with a restriction protecting the parties until the appeal is determined, after which the register is altered. The Court of Appeal in Euton Njuki Makungo v Republic confirmed the Minister's jurisdiction where registration occurred pending appeal. The applicant exhibited no title deed.

p. 8

Legal principles established

#
  • Proceedings under the Land Adjudication Act are not strictly governed by the rules of civil litigation; persons representing deceased claimants under customary law need not hold letters of administration to have locus standi before the adjudication committee or the Minister
  • An appeal to the Minister over adjudicated land may be heard notwithstanding registration and a restriction; the register is to be altered in accordance with the determination of the appeal
  • To succeed in judicial review, the applicant must show the impugned decision is tainted with illegality, irrationality or procedural impropriety

Court orders

#
  1. 1.The Ex-parte Applicant's Notice of Motion application dated May 24, 2019 is dismissed with costs to the Respondent.

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 47
  • Fair Administrative Action Act 2015Sections 3, 4, 5, 6, 7, 8; Section 7(2)
  • Civil Procedure Rules 2010Order 53 Rule 1 and 2
  • Land Adjudication ActSections 12(1), 13(5), 24-28, 27(3), 29
  • Land Registration Act No. 3 of 2011Section 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; Fair Administrative Actions Act, 2015; Order 53 Rules 1 and 2 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Republic v Deputy County Commissioner, Kitui West Subcounty; Malonza (Exparte) (Miscellaneous Civil Application 10 of 2021) [2022] KEELC 2723 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated May 24, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2723/eng@2022-06-23

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