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ELCAllowedJudicial Review Miscellaneous Application E009 of 2022· [2023] KEELC 17516 (KLR)

Republic v Ministry of Lands & 3 others; M'mbetsa (Interested Party); Mtula (Exparte Applicant)

Environment and Land Court of Kenya
23 May 2023
7,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed land adjudication decisions made outside the officer's legal powers, confirming that land disputes must follow the Land Adjudication Act's strict timelines and procedures.

What this practically means

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Executive summary

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The ex parte Applicant sought certiorari to quash two decisions: the Kinango Sub County Land Adjudication & Settlement Officer's decision of 26 October 2021 allowing the Interested Party's objection No 45 of 2021 and creating plot 2932 out of plot 2781, and the Minister's decision of 21 March 2022 (through the Deputy County Commissioner) affirming it; he also sought mandamus to enforce the Arbitration Board's decision of 20 April 2010 which had subdivided plot 677 and allocated him plot 2781. The dispute between members of the same clan dated back to 2006. The court, applying the process-not-merits framework of judicial review, held that the Interested Party's grievance against the Board's 2010 decision was in substance an appeal which he failed to lodge under sections 21 and 22 of the Land Adjudication Act within 14 days; filing it as a section 26 objection 11 years later was improper and the internal process was not exhausted. Further, section 26 confines the Adjudication Officer to correcting an incorrect or incomplete register against the Board's determination; creating a new plot exceeded his powers, as did sitting single-handedly to review a properly constituted Board's decision, offending fair administrative action. The Minister's affirming decision fell with the illegal decision. Certiorari issued quashing both decisions, and mandamus issued directing the respondents to implement the 2010 Board decision in accordance with the Act, without fast-tracking. Each party was ordered to bear its own costs given the parties' relationship.

Key legal issues

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01

Whether objection No 45/2021 was properly filed

Holding

The objection was in substance an appeal against the Board's 2010 decision and should have been lodged under sections 21 and 22 within 14 days; it was improperly filed under section 26 and the internal process was not exhausted.

Reasoning

The Interested Party's own replying affidavit admitted he was dissatisfied with the decision in case No 3107-08 and filed objection No 45/2021. Any person named in or affected by a committee decision must complain within 14 days under section 21(3), leading to the Arbitration Board under section 22. The argument that no Board sat for 11 years could not excuse the failure to lodge the claim; equity aids the vigilant, not the indolent.

p. 9
02

Whether the Adjudication Officer had power to create a new plot under section 26

Holding

The Officer exceeded jurisdiction by carving out plot 2932, a matter never determined by the Arbitration Board; section 26 permits only correction of an incorrect or incomplete register.

Reasoning

At the objection stage the adjudication process is complete as to ascertainment of claims and dispute resolution, so the Officer must confine himself to the Board's determination and the register. Creating a new plot in favour of the objector went beyond correcting errors. Further, the Officer sat single-handedly to review a decision of a properly constituted Board, which offended transparency, accountability and fair administrative action.

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Whether certiorari and mandamus should issue

Holding

Certiorari issues because the decisions were made without or in excess of jurisdiction; mandamus issues to compel implementation of the 2010 Board decision in accordance with the Act.

Reasoning

Citing Kenya National Examination Council v Geofrey Gathenji Njoroge, certiorari will issue where a decision is made without or in excess of jurisdiction or in breach of natural justice. Having found the objection decision illegal, the Minister's affirming decision fell with it since nothing comes out of an illegality. Mandamus lies to remedy defects of justice where there is a specific legal right, with a rider that enforcement follow the Act's ordinary process without fast-tracking.

p. 11

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
  • An objection under section 26 of the Land Adjudication Act is confined to correcting errors or incompleteness in the adjudication register against the Arbitration Board's determination; the Adjudication Officer has no power to review or change that determination.
  • Judicial review concerns the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of certiorari quashing the decision of the Kinango Sub County Land Adjudication & Settlement Officer made on October 26, 2021 with regard to Plot No 2781 Kinango Mnyenzeni Adjudication Section
  2. 2.An order of certiorari quashing the decision of the Minister through the Kinango Deputy County Commissioner dated March 21, 2022 affirming the decision of October 26, 2021 allowing objection No 45 of 2021
  3. 3.An order of mandamus directed at the 1st, 2nd & 3rd respondents to implement the decision delivered on April 20, 2010 in Land Adjudication Board Case No 3107-08 [31-07-08] Nyota Mwero v Zuma Marunga Matari in accordance with the Land Adjudication Act
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Land Adjudication Actsections 3, 4, 5, 6, 7, 13, 20, 21, 22, 25, 26, 29
  • Fair Administrative Action Actsections 2, 7, 8, 9, 10, 11
  • Civil Procedure Rules 2010Order 53
  • Constitution of Kenya 2010Articles 47, 50
  • Limitation of Actions Actsection 7

Cases cited (10)

  • Nicholas Njeru suing for himself and as representative of Mukera Clan of Mbeere
    (2013) eKLR

    Supervisory jurisdiction of the High Court over inferior tribunals and quasi-judicial bodies

  • Republic v Commissioner General Kenya Revenue Authority ex-parte Sanofi Aventis Kenya Limited
    (2019) eKLR

    Need to strictly adhere to special procedures for redress of grievances set under the Constitution or an Act of Parliament

  • R vs. Director of Lands & Adjudication & 5 Others Exparte Geofrey Mutie Mbule
    (2013) eKLR

    Failure to consider grounds of appeal and consideration of unpleaded factors breaches fair hearing

  • Pastoli v Kabale District Local Government Council & others
    (2008) 2 EA 303

    What an applicant for judicial review must demonstrate; definition of illegality

  • Kenya Re-Insurance Corporation vs. National Land Commission
    (2018) eKLR

    Judicial review does not extend to merits of decisions

  • Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji And Ahmed Hasham Lalji
    [2014] eKLR

    Judicial review is concerned with process, not merits

  • Republic v Mount Kenya University & Another
    (2017) eKLR

    Scope of judicial review as constitutional supervision challenging legal and procedural validity

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Nairobi Civil Appeal No 185 of 2007 (2002) eKLR

    Court examines how decision was made: jurisdiction, hearing, relevant considerations

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • Kenya National Examination Council v Geofrey Gathenji Njoroge & 9 others
    Civil Appeal No 266 of 1996

    Certiorari issues where decision made without or in excess of jurisdiction; scope of mandamus

Jurisdiction invoked
Sections 7, 8, 9, 10 and 11 of the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules 2010, operationalising Article 47 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, "Republic v Ministry of Lands & 3 others; M'mbetsa (Interested Party); Mtula (Exparte Applicant)", Case Analysis (2023). Judicial Review Miscellaneous Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17516/eng@2023-05-23

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