Republic v Cabinet Secretary Ministry of Land and Physical Planning & 3 others; Gitonga & another (Exparte); Riungu & 3 others (Interested Parties)
The bottom line
#A Kenyan court cancelled a land appeal decision because the official who heard it was never gazetted to do so.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was heard by a person without jurisdiction
Yes - the applicants proved on a balance of probabilities that the Assistant County Commissioner who conducted the hearing lacked jurisdiction, as the gazette notice evidencing delegation was not exhibited and the role of the Assistant County Commissioner was unexplained.
Section 29(4) of the Land Adjudication Act permits the minister to delegate appellate functions only by gazette notice naming the public office or officer. The respondents asserted delegation to the Deputy County Commissioner via Gazette Notice 6854 but did not exhibit it. The proceedings showed the appeal was heard before both the Deputy County Commissioner and the Assistant County Commissioner, whose authority was never demonstrated. Unrebutted, this went to the root of the decision.
Whether the rules of natural justice were breached
No - the proceedings showed all parties, including the applicants, were given a hearing and testified.
The court perused the proceedings in Minister's Appeal Case No 297 of 2017 and found that all parties including the applicants were heard and testified. The allegation that the respondents refused the applicants a hearing was found to be untrue.
Whether the minister's delegate was biased
No - no evidence of bias; the delegate had discretion to believe or disbelieve witnesses based on evidence and demeanour.
The court found no evidence of bias. The Deputy County Commissioner, while hearing the appeal, had the discretion of who to believe and who not to believe, and the decision was based on the evidence before him and the demeanour of the witnesses. The submission on bias was rejected.
Legal principles established
#- The minister may delegate his appellate functions under section 29(4) of the Land Adjudication Act only to a public office or officer named in a gazette notice; the delegate must be properly gazetted.
- Where the authority fails to exhibit the gazette notice evidencing delegation and does not explain the role of the person who conducted the hearing, an allegation of lack of jurisdiction is taken as proved on a balance of probabilities.
- Judicial review concerns the decision-making process, not the merits of the decision.
Court orders
#- 1.An order of certiorari quashing the decision of the 1st respondent in respect of land parcels No 805, 806, 817 and 818 Kamwimbi 'A' Adjudication Section in Minister's Appeal Case No 297 of 2017
- 2.An order of prohibition prohibiting the 2nd and 3rd respondents from implementing the decision of the 1st respondent dated October 7, 2021 in regard to parcels No 805, 806, 817 and 818 Kamwimbi 'A' Adjudication Section
- 3.The appeal remitted back for hearing and determination by a person properly and legally authorized to do so
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 rule 3(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary Ministry of Land and Physical Planning & 3 others; Gitonga & another (Exparte); Riungu & 3 others (Interested Parties)", Case Analysis (2022). Environment and Land Judicial Review Case E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13535/eng@2022-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.