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ELCPartially AllowedEnvironment and Land Case Judicial Review Application E16 of 2022· [2023] KEELC 19226 (KLR)

Republic v Deputy County Commissioner Igembe Subcounty & another; M'Mwireria (Interested Party); Kithure (Exparte Applicant)

Environment and Land Court
26 July 2023
CNCK NZILI
3,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a Minister's land appeal decision because it was filed late and heard unfairly.

What this practically means

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Executive summary

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The exparte applicant, registered owner of Parcel No. Meru North/Kirindine/'B'/2448 following a successful objection before the Land Adjudication Officer, sought certiorari to quash the decision of the Deputy County Commissioner Igembe South Subcounty in Minister's Appeal No. 68 of 2019, by which the interested party was awarded all his land, and prohibition against its implementation. The respondents filed no response or submissions. The interested party asserted he had purchased the land from the late Kobia M'Imathiu through successive sale agreements and had filed his Minister's appeal in time. The court framed four issues: timeliness of the appeal, legality of the Minister's hearing, merits of the motion, and costs. On timeliness, the court found the appeal documents undated, unstamped and unsupported by payment receipts, and held that without contrary evidence the appeal was filed outside the 60-day statutory period under Section 29 of the Land Adjudication Act, which the 1st respondent had no power to admit or hear. On process, the court found the 1st respondent acted illegally and unprocedurally: he failed to identify the decision appealed against, did not explain departing from the adjudication officer's findings, failed to consider the record systematically, and admitted fresh evidence without justification, contrary to Article 50(2) and the requirement of a fair hearing. Applying the Pastoli thresholds of illegality, irrationality and procedural impropriety, the court found the decision of 9.6.2022 was based on an incompetent and unmerited appeal, quashed it, and awarded costs to the applicant. The prohibition limb was not expressly disposed of in the final orders.

Key legal issues

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01

Whether the Minister's appeal was filed within the statutory 60 days

Holding

The appeal was filed out of time and without leave; the interested party and respondents failed to substantiate the filing date with receipts or stamped documents

Reasoning

The objection decision dated 7.4.2018 required any appeal by 7.6.2018. The grounds of appeal and annexures were undated and unstamped, receipts were lacking, and no register of Minister's appeals was produced. The certified decision before the court was dated 7.4.2018, and no contrary evidence established a different decision date.

p. 5
02

Whether the Minister heard and determined the appeal within the law

Holding

The hearing was illegal and unprocedural: a time-barred appeal over an undefined decision was admitted, fresh evidence was taken without explanation, and the grounds of appeal were not systematically considered

Reasoning

The 1st respondent failed to establish which decision was under appeal, did not explain departing from the Land Adjudication Officer's findings, did not consider the whole record, and did not clarify the basis for admitting fresh evidence or subjecting it to forensic examination, contrary to Section 29 of Cap 284 and natural justice.

p. 5
03

Whether the notice of motion has merits

Holding

The motion merited relief by way of certiorari; the Minister's decision dated 9.6.2022 was quashed

Reasoning

Applying the Pastoli thresholds, the decision was tainted with illegality (hearing a statute-barred appeal) and procedural impropriety (failure to consider grounds systematically, taking fresh evidence without justification), warranting quashing of the decision.

Legal principles established

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  • The Minister/Deputy County Commissioner has no power to admit, hear or determine an appeal to the Minister lodged outside the statutory 60-day period under Section 29 of the Land Adjudication Act
  • A judicial review applicant must show illegality, irrationality or procedural impropriety in the decision-making process
  • The burden of proof lies on the party who would lose if the fact is not proved; the party asserting an appeal was filed in time must substantiate it

Court orders

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  1. 1.The decision of the 1st respondent in Minister's Appeal No. 68 of 2019 dated 9.6.2022 is brought before the court and quashed
  2. 2.Costs of the application to the exparte applicant
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (certiorari and prohibition) under the Land Adjudication Act (Cap 284) and Article 50(2) 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 Deputy County Commissioner Igembe Subcounty & another; M'Mwireria (Interested Party); Kithure (Exparte Applicant)", Case Analysis (2023). Environment and Land Case Judicial Review Application E16 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19226/eng@2023-07-26

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