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ELCDismissedJudicial Review 18 of 2022 (Formerly Eldoret Judicial Review No. 10 of 2021)· [2022] KEELC 15289 (KLR)

Republic v County Commissioner, Elgeyo Marakwet & 3 others; Suter & 11 others (Interested Parties); Chemastan & another (Exparte Applicants)

Environment and Land Court of Kenya
7 December 2022
4,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a challenge to a land adjudication appeal decision, confirming that claims of unfair hearings must be backed by evidence.

What this practically means

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Executive summary

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The ex parte applicants, Toroitich and Kibiwott Chemastan, sought orders of certiorari to quash the decision of 24th February 2021 in Chesoi Adjudication Section Appeal to the Minister No. 515 of 2020, and prohibition restraining implementation of that decision, which awarded plots Nos. 2379, 2378, 2391, 2374, 2376, 2394, 2371, 2377, 2355, 2372, 2373, 2392 and 2375 in Chesoi Adjudication Section to the interested parties. They contended the parcels had formerly been one parcel, No. 2833, adjudicated to their family in earlier proceedings, that re-adjudication was ultra vires and fraudulent, that the Land Adjudication Officer lacked jurisdiction, and that the proceedings contravened the Limitation of Actions Act. The respondents explained that the first adjudication was never completed because the adjudication office was invaded and all records destroyed, necessitating a fresh process, and that the applicants' complaints raised merits unsuitable for judicial review. The interested parties maintained the applicants participated fully at all adjudication stages and that the Minister's decision under section 29 of the Land Adjudication Act is final. Waithaka J held that the applicants were in fact heard at the appeal, that their allegations of procedural unfairness were unsupported by evidence, and that judicial review examines process rather than merits, applying Municipal Council of Mombasa v Republic. The Notice of Motion dated 14th September 2021 was dismissed with costs to the respondents and the interested parties.

Key legal issues

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01

Whether the ex parte applicants were denied a fair hearing before the Minister's delegate

Holding

The court held the applicants were heard; the proceedings showed the appellant was heard in person and through a witness, and no evidence proved the alleged denial

Reasoning

The court examined the proceedings of the appeal heard by the DCC Marakwet East with assessors. Contrary to the applicants' contention, the record showed the appellant was heard personally and through a witness. As the party alleging denial of the right to be heard, the applicants bore the burden of proof but produced no evidence capable of proving the allegation.

p. 8
02

Whether the court could interfere with the decision of the adjudication organs and the Minister

Holding

Interference is only permissible on the grounds contemplated in Municipal Council of Mombasa v Republic - process errors, not merits - and none was proved

Reasoning

The court adopted the Court of Appeal's statement in Municipal Council of Mombasa that judicial review examines the decision-making process: whether the decision-maker had jurisdiction, whether affected persons were heard, and whether relevant or irrelevant matters were considered. The applicants pleaded such grounds but failed to adduce evidence proving their existence.

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Whether the second adjudication of the suit parcels was unlawful

Holding

The respondents explained the first adjudication was never completed because the office was invaded and records destroyed, necessitating a fresh process; the applicants' contention failed

Reasoning

The respondents acknowledged a previous adjudication but deponed that before completion the adjudication office was invaded and all documents destroyed, so the process had to be restarted afresh. The interested parties likewise stated the previous process was never finalized and records could not be traced. The applicants' assertion of a completed prior adjudication was not established.

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; a review court is not entitled to act as a court of appeal over the decision-maker
  • A party alleging denial of a fair hearing bears the burden of producing evidence proving that allegation

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 14th September 2021
  2. 2.Costs of the application to the respondents and the interested parties

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Adjudication ActCap 284, section 29
  • Limitation of Actions Act
  • Land Disputes Tribunal ActNo. 18 of 1990 (repealed)

Cases cited (1)

  • Municipal Council of Mombasa v. Republic & Another
    (2002) e KLR

    Judicial review is concerned with the decision-making process, not the merits; the court cannot sit as an appellate body over the decision-maker

Jurisdiction invoked
Judicial review jurisdiction over certiorari and prohibition under Order 53 of the Civil Procedure Act, in respect of decisions under the Land Adjudication Act, Cap 284

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, "Republic v County Commissioner, Elgeyo Marakwet & 3 others; Suter & 11 others (Interested Parties); Chemastan & another (Exparte Applicants)", Case Analysis (2022). Judicial Review 18 of 2022 (Formerly Eldoret Judicial Review No. 10 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15289/eng@2022-12-07

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