MARIQUETA NKOYAI M’THIRINGI v ATTORNEY GENERAL
The bottom line
#Kenya's Environment and Land Court quashed a land adjudication decision made without the required committee and gave the family a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Time bar under Order 53 Rule 2 CPR / Section 9(3) Law Reform Act
Application was filed within six months of the decision and not time barred
Leave was granted on 7/5/2021 in respect of a decision made on 24/11/2020, within the six-month window prescribed by Order 53 Rule 2 Civil Procedure Rules. The notice of motion dated 27/5/2021 followed the leave and therefore came within the statutory period.
Capacity to sue for a deceased person's estate in adjudication proceedings
Letters of administration not required; the exparte applicant was a proper party
Under the Land Consolidation Act the tribunal determines interests in land under customary tenure rather than individual ownership; the strict succession regime does not apply before registration. The applicant participated in the objection proceedings and described her capacity and interest in her statutory statement; her rights under Articles 159 and 258 of the Constitution should not be denied for want of a grant.
Consent to sue and exhaustion of internal mechanisms
Neither a consent under Section 8 of the Land Consolidation Act nor exhaustion of internal remedies was required for judicial review
No statute expressly requires a consent to mount judicial review, which is sui generis, being neither civil nor criminal proceedings. The applicant was challenging the legitimacy and constitutionality of the process, so she needed to go nowhere else except the court.
Fairness and legality of the objection proceedings and decision
The proceedings and decision did not meet the statutory and constitutional threshold and were quashed
The committee is required under Section 26(1) of the Land Consolidation Act to hear the objection with the adjudication officer, yet there was no indication the committee members participated in the hearing, scene visit or disposal. The respondent also failed to supply requested reasons and material within 30 days as required by section 6(3) of the Fair Administrative Action Act, and did not deny the factual allegations. The decision therefore fell foul of Articles 25 and 47 of the Constitution.
Legal principles established
#- A party pursuing claims in land consolidation and adjudication processes on behalf of a deceased person's interest does not require letters of administration because the dispute concerns interests in land under customary tenure, not individual ownership
- Judicial review proceedings challenging the constitutionality of an adjudication process are sui generis and do not require a consent under section 8 of the Land Consolidation Act nor exhaustion of internal mechanisms
- An adjudication officer must hear and determine an objection in conjunction with the land adjudication committee, and the committee cannot delegate its powers to the officer
Court orders
#- 1.The statutory statement dated 27.5.2021 is rejected as irregularly before the court
- 2.Judicial review order of certiorari to bring to the court and quash the proceedings and decision made on 24/11/2020 regarding Objection No. 11478 over Parcel No. 3085 and 7770 Karama Adjudication Section
- 3.The objection is remitted for re-hearing by the 1st respondent through another Land Adjudication Officer and Land Adjudication Committee within 6 months from the date of the judgment
- 4.Costs to the exparte applicant
- Jurisdiction invoked
- Sections 8 & 9 of the Law Reform Act, Order 53 rule 1(1)(2) and (3) Civil Procedure Rules, and Articles 47, 159 and 258 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARIQUETA NKOYAI M’THIRINGI v ATTORNEY GENERAL", Case Analysis (2022). Judicial Review (Notice of Motion dated 27/5/2021), Karama Adjudication Section. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2814/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.