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ELCPartially AllowedJudicial Review (Notice of Motion dated 27/5/2021), Karama Adjudication Section· [2022] KEELC 2814 (KLR)

MARIQUETA NKOYAI M’THIRINGI v ATTORNEY GENERAL

Environment and Land Court
18 May 2022
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The exparte applicant, the daughter of the late M'Thiringi M'Anampiu, moved the court by notice of motion dated 27/5/2021 under Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules and Article 47 of the Constitution, seeking certiorari to quash the 1st respondent's decision of 24/11/2020 dismissing Objection No. 11478 concerning parcels 3085 and 7770 Karama Adjudication Section, together with mandamus to compel supply of the demarcation map. Leave had been granted on 7/5/2021. The respondents opposed on grounds of time bar, want of capacity (no letters of administration for the deceased), failure to seek consent to sue, unexplained delay and non-exhaustion of internal remedies, and contended no public duty supported mandamus. The interested party, a purchaser of a subdivided parcel, similarly opposed, alleging a fair hearing before the adjudication officer. The court framed four issues: time bar and capacity; exhaustion; the statutory and constitutional adequacy of the proceedings; and entitlement to relief. It held the application was within six months; that letters of administration are unnecessary in land consolidation matters, which concern customary land interests rather than individual ownership; that judicial review is sui generis and needs no consent to sue nor exhaustion of internal mechanisms; and that the objection proceedings failed the statutory and constitutional test because the committee's participation was not evident and no reasons were supplied. The court quashed the decision, remitted the objection for rehearing before a different officer and committee within six months, and awarded costs to the applicant.

Key legal issues

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01

Time bar under Order 53 Rule 2 CPR / Section 9(3) Law Reform Act

Holding

Application was filed within six months of the decision and not time barred

Reasoning

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.

p. 4
02

Capacity to sue for a deceased person's estate in adjudication proceedings

Holding

Letters of administration not required; the exparte applicant was a proper party

Reasoning

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.

p. 6
03

Consent to sue and exhaustion of internal mechanisms

Holding

Neither a consent under Section 8 of the Land Consolidation Act nor exhaustion of internal remedies was required for judicial review

Reasoning

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.

p. 6
04

Fairness and legality of the objection proceedings and decision

Holding

The proceedings and decision did not meet the statutory and constitutional threshold and were quashed

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The statutory statement dated 27.5.2021 is rejected as irregularly before the court
  2. 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. 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. 4.Costs to the exparte applicant

Authorities

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Legislation

  • Law Reform ActSections 8 & 9 (including s 9(3))
  • Fair Administrative Action ActSections 3, 6(3), 7, 8, 9 & 11 (cited variously as s 4, 5, 6 and 456)
  • Civil Procedure RulesOrder 53 Rules 1(1)(2)(3) & 2; Order 51 rule 16
  • Constitution of KenyaArticles 25, 35, 47, 159 & 258
  • Land Consolidation ActSections 8, 13, 15, 17, 18, 20, 21, 24, 25(3), 26 & 26(1)
  • Land Adjudication ActSections 29 & 30
  • Access to Information ActGeneral (2015/2016 as cited)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) (Practice and Procedure Rules) 2013General

Cases cited (17)

  • Peter Kimendiu Vs Land Adjudication Officer Tigania West District and 4 others
    (2016) eKLR
  • Joshua Mithika & another Vs Kobia Kaugeri & 2 others
    (2021) eKLR
  • Land Adjudication Officer Tigania East Exparte Simon Mugambi Nabea, Alexander Kanjoi
    (18) 2021 (eKLR)
  • JSC vs Mbula Mutava & another
  • Republic Vs National Employment Authority and 3 others Exparte Middle East Consultancy Services Ltd
    (2018) eKLR
  • Republic vs L.A.O Tuturung Adjudication Section Elgeyo Marakwet & another exparte Biyaa Clan
    (2021) eKLR
  • Tugura Munya represented by Kithaka Ikuthi Vs Minister for lands and 2 others
    (2018) eKLR
  • KNEC VS Rep Exparte Geoffrey Njoroge & 9 others
    (1997) eKLR
  • Republic vs District Commissioner Machakos and another exparte Kakui Mutiso
    (2014) eKLR
  • Peter N. Ngandi & 2 others Vs John Muthomi & another
    2022 eKLR
  • Domenica Kalotia Kalalu Vs Tigania East District Land and Settlement Officer & another Shadrack Muthee M'Imanja (Interested Party)
    (2019) eKLR
  • Commissioner of Lands vs Kunste Hotel Ltd
    (1997) eKLR
  • Julius Ntogaiti Methang'athia & Settlement officer Meru North (Nyambene District) & 3 others
    2000 eKLR
  • Timotheo Makenga vs Maunga Ngodi
    (1979) KLR 53
  • Republic vs Musanka Ole Kuyioni & 2 others and Joseph Lesulol Lekitio and others exparte application
  • The Muthaara Njuri Ncheke Council of Elders and another Vs the Committee Ngare Mara Gambella Adjudication Section and 2 others
    (2019) eKLR
  • Shollei vs JSC & another
    (petition 34 of 2014) 2022 KESC 5 (KLR) (CIV) 17 February, 2022
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

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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, "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.