Republic v Attorney General & another; Mathuku (Interested Party); Kitambu & another (Exparte)
The bottom line
#Kenya's Kitui Environment and Land Court quashed a land appeal decision because the parties were never notified or given a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Non-joinder of co-owners of the suit parcels
Non-joinder was not fatal; the affected parties were served under Order 53 Rule 3(2) and chose not to participate, and each aggrieved person may apply under Section 7(1) FAAA
The parcels were registered jointly with persons not party to the suit. The court directed service of pleadings and hearing notice on all persons likely to be affected under Order 53 Rule 3(2). They were served but filed no reply, so no prejudice arose. Section 7(1) of the Fair Administrative Action Act entitles any aggrieved person to apply for review in their own capacity, so the suit could not be dismissed merely for failure to join the other affected parties.
Failure to annex the impugned decision under Order 53 rule 7(1)
Requirement waived where the decision's existence is undisputed and the 2nd Respondent refused to supply it despite four written requests
The Respondents did not deny the decision existed; grounds of appeal and summons evidenced it. The Ex parte Applicants exhibited letters requesting the proceedings and decision which the 2nd Respondent ignored. A party cannot benefit from its own wrongdoing. Following IEBC v NASA, where the existence and nature of a decision are uncontested, attachment may be waived under Article 159(2)(d), and Section 6(5) FAAA raises a presumption the decision was taken without good reason.
Fairness of the Minister's Appeal
The appeal breached natural justice, Article 50 and Article 47; respondents to the appeal were not served with summons and were denied a hearing
It was undisputed that the 2nd Ex parte Applicant and other respondents to the Minister's appeal were not served with summons. When the 2nd Ex parte Applicant sought an explanation she was treated rudely and excluded. The hearing was abandoned mid-way and the decision read without concluding the hearing. Failure to notify and to accord a hearing breached the audi alteram partem rule, Article 50 and Article 47, warranting certiorari.
Fresh hearing and calling of witnesses in the Minister's Appeal
Section 29 does not require witnesses on appeal, but once the Minister begins hearing evidence he must finish the case in the same manner (Mahaja v Khatwalo)
The court agreed with the Respondents that Section 29 of the Land Adjudication Act does not mandate calling of witnesses on appeal to the Minister, and Rule 4(4) requires leave for witnesses. However, having embarked on a fresh hearing of evidence, the 2nd Respondent was bound to complete it in the same manner; abandoning the hearing halfway and reading the decision without conclusion was an error on the face of the record.
Whether Kitui SRMC Land Case No. 20 of 1989 offended Section 30 of the Land Adjudication Act
It did not; the decision predated adjudication and was enforceable under Section 30(4)
Section 30 bars institution of civil proceedings over land in an adjudication section before the register becomes final. But the decision in the 1989 suit was made on 22nd August 1990, long before adjudication commenced on 28th November 2013. Section 30(4) permits enforcement of a final court order not under appeal where the appeal time has expired, so the adjudication process rightly took that order into account.
Legal principles established
#- Failure to notify respondents to a Minister's appeal of the hearing and failing to accord them an opportunity to be heard breaches natural justice, Article 50 and Article 47
- The requirement to attach the impugned decision under Order 53 rule 7(1) can be waived where the decision's existence and nature are undisputed and the administrator refused to furnish it
- A final court order made before adjudication commenced may be enforced and considered in the adjudication process under Section 30(4) of the Land Adjudication Act
Court orders
#- 1.An order of Certiorari issued to remove into the court and quash the proceedings and decision of the 2nd Respondent in Katse Adjudication Section Appeal to the Minister No. 37 of 2020 over Katse Adjudication Section Parcel Nos. 919, 918, 917, 916, 915, 914, 913, 912, 920, 921, 922, 923, 924, 925, 926, 895, 896, 897, 898, 911, 899, 900, 901, 902 and 910
- 2.Costs awarded to the Ex parte Applicants
- Jurisdiction invoked
- Articles 35, 47 and 159 of the Constitution; Sections 8 and 9 of the Law Reform Act; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another; Mathuku (Interested Party); Kitambu & another (Exparte)", Case Analysis (2022). Judicial Review Application E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13362/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.