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ELCStruck OutJudicial Review 2 of 2022· [2023] KEELC 15674 (KLR)

Republic v National Land Commission; Oraga & 6 others (Exparte); Catholic Diocese of Homa Bay (Interested Party)

Environment and Land Court
21 February 2023
GOGMA Ongondo
2,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a family's land claim because they had no letters of administration and filed too late.

What this practically means

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Executive summary

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Seven ex parte applicants sought judicial review orders of prohibition and mandamus against the National Land Commission, seeking to bar their eviction from 5.0 hectares of land parcel Gem/Komolo/47 forming part of Nyauu D.O.K Primary School, and to compel payment of compensation allegedly promised when their fathers allowed the school land to be enlarged from 4.8 to 9.8 hectares during 1972 land adjudication. Alternatively, they sought surrender of the 5.0 hectares. The respondent did not respond despite service. The Catholic Diocese of Homa Bay, as interested party, opposed, contending the original owners were compensated, the extra land was a gift inter vivos, the applicants lacked locus standi having no letters of administration to the original owners' estates, the claim was statute-barred, and compensation was untenable in judicial review. The court, per GMA Ongondo J, held that a litigant acquires locus standi in intestate succession only upon obtaining a grant of letters of administration, and no evidence showed the applicants were legal representatives of the estates of Abonyo Akuku, Wasonga Randiki and Opande Ogosi. Applying Section 7 of the Limitation of Actions Act, the court found the cause of action arose in the 1950s and the 2017 application was time-barred. On fair administrative action, the court held the Land Registrar accorded parties a hearing and issued a reasoned written decision in the boundary dispute of 1st December 2016, so Article 47 rights were not contravened. The application was struck out with each party bearing own costs given the public interest element.

Key legal issues

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01

Locus standi of the ex parte applicants

Holding

Applicants lacked locus standi as they produced no evidence they are legal representatives of the estates of the original land owners

Reasoning

The interested party identified the original owners as Abonyo Akuku, Wasonga Randiki and Opande Ogosi. The applicants produced no letters of administration to those estates. Following Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama, a litigant only acquires locus standi in intestate succession upon obtaining a limited or full grant of letters of administration. The applicants therefore could not maintain the claim.

p. 4
02

Limitation of actions

Holding

The claim was time-barred under Section 7 of the Limitation of Actions Act, the cause of action having arisen in the 1950s and the suit filed in 2017

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right of action. The applicants' complaint related to land allegedly set aside and added to the school in the 1950s and 1972, yet the application was filed in 2017, well beyond twelve years. The claim was therefore statute-barred.

p. 5
03

Fair administrative action by the Land Registrar

Holding

The Land Registrar followed due process, accorded parties a hearing and issued a reasoned written decision, so Article 47 rights were not contravened

Reasoning

Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act require lawful, reasonable and procedurally fair administrative action with written reasons. The Land Registrar heard the parties, including the 1st applicant, and reduced his decision of 1st December 2016 into writing. The applicants did not appeal against that decision but instead brought judicial review. Due process was followed.

p. 5

Legal principles established

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  • A litigant is clothed with locus standi upon obtaining a limited or full grant of letters of administration in case of intestate succession
  • An action to recover land may not be brought after twelve years from when the right of action accrued
  • Judicial review concerns the legality of the decision-making process, not the merits of the decision

Court orders

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  1. 1.The application dated 24th March 2022 and lodged on 27th April 2022 struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6(3), 40(1), 40(4), 47, 47(1), 48, 50, 159(1)
  • Civil Procedure Rules, 2010Order 53 Rule 1
  • Land ActSections 152, 98 (as amended by Land Laws (Amendment) Act 2016), Part VIII and IX
  • Land Laws (Amendment) Act, 2016Section 98
  • Land Registration ActSections 18, 19, 24, 25, 26, 28
  • Fair Administrative Action Act, 2015Sections 3(b), 4(1), 4
  • Limitation of Actions Act, Chapter 22 Laws of KenyaSection 7

Cases cited (5)

  • Sarah Jepwambok v Kibiwott Chepkuto; Geoffrey Kiprotich Chemweno (Interested party)
    (2021) eKLR

    Relied on by applicants' counsel to buttress submissions on compensation for unlawfully acquired land

  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    (2014) eKLR

    Locus standi requires grant of letters of administration in intestate succession

  • Johnson Otieno Adera v Lucas Angonga & another
    [2020] eKLR

    Duty to hear parties under Article 159(1); audi alteram partem rule

  • Re-Hebtulla Properties Ltd
    (1976-80) 1 KLR 1195 at 1209

    Right to be heard (audi alteram partem)

  • Samwel Kamau Macharia and another v Kenya Commercial Bank Ltd and 2 others
    (2012) eKLR

    Each party bearing own costs where public interest element exists

Jurisdiction invoked
Order 53 Rules 1 of the Civil Procedure Rules, 2010; Articles 6(3) and 48 of the Constitution (transfer of Migori Misc. Land Application No. 47 of 2017)

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 National Land Commission; Oraga & 6 others (Exparte); Catholic Diocese of Homa Bay (Interested Party)", Case Analysis (2023). Judicial Review 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15674/eng@2023-02-21

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