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ELCPartially AllowedPetition E008 of 2023· [2023] KEELC 21522 (KLR)

Rhodah Kuri Mohamed v Deputy County Commissioner Buuri East Subcounty & another; Kirimi & 3 others (Interested Parties)

Environment and Land Court at Meru
8 November 2023
6,798 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 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 the land was already titled and the appellant wasn't a party to the original objection.

What this practically means

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Executive summary

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The petitioner, a granddaughter and beneficiary of the late Saleh Mohamed, owner of Plot No. Ruiri/Rwarera Adjudication Section 464 (approx. 20.60 acres), petitioned under Articles 1, 27, 28, 47 and 50 challenging the hearing and determination of a Minister's Appeal No. 119/2020 by the Deputy County Commissioner Buuri East. She alleged the 1st interested party, who was not a party to the DLASO objection, was allowed to prosecute the appeal; that Hellen Kanyua testified and was allocated 1.5 acres without notice or any claim; that the land had already been subdivided and titled per the deceased's wishes; and that the decision directed subdivision of already-registered land. She sought declarations of unprocedurality and ultra vires, nullification, and quashing of the decision. Respondents and interested parties argued lack of locus standi (no letters of administration), lack of precision, no constitutional issues, and that judicial review was the proper avenue. The court framed nine issues and held: the petitioner had standing without a grant of letters of administration; a constitutional petition was a permissible avenue alongside judicial review; and, critically, the Minister lacked jurisdiction because the suit land was already registered and titled, and the appeal was lodged by a non-party outside the 60-day window with no proof of filing. The proceedings breached natural justice and Articles 40(6) and 47. The court found the appeal incompetent and the decision ultra vires, quashed and set aside the proceedings and decision, and awarded costs to the petitioner.

Key legal issues

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01

Locus standi of the petitioner

Holding

The petitioner, a grandchild and beneficiary with title to a resultant subdivision, had standing without letters of administration

Reasoning

Article 258 sets the standard for standing; courts have opened doors to persons with bona fide claims of rights violations. The petitioner disclosed her stake, held title deeds to resultant subdivisions, and participated in the Minister's appeal representing the estate. Her beneficial interest was confirmed by the respondents and interested parties.

p. 7
02

Exhaustion and choice between judicial review and constitutional petition

Holding

The petitioner was entitled to elect a constitutional petition; she was not guilty of non-exhaustion

Reasoning

Article 47 elevated fair administrative action into the Bill of Rights; judicial review remedies were subsumed in the Constitution. Article 23 allows the court to grant appropriate reliefs including judicial review orders in a petition. The two systems are complementary, not mutually exclusive.

p. 9
03

Jurisdiction of the Minister over registered land and by a non-party appellant

Holding

The Minister's appeal was incompetent; the decision-maker was bereft of jurisdiction over titled land and the appeal was lodged by a stranger to the objection

Reasoning

Title deeds for the resultant subdivisions were issued in 2017, before the objection and appeal, so the land was outside Cap 283/284. Only the court under Section 80 of the Land Registration Act can cancel or rectify titles. The 1st interested party was not a party to the objection; the 2nd interested party represented the late Zipporah. No evidence showed the appeal was filed within 60 days.

04

Fair hearing and fair administrative action

Holding

The proceedings and decision failed the statutory and constitutional test under Articles 40(6) and 47

Reasoning

The 1st respondent allowed Hellen Kanyua to testify without notice to the petitioner, subdivided land to non-parties, and subdivided already-titled land without inquiry. The decision defied logic and acceptable standards, amounting to illegality, irrationality and procedural impropriety under the Wednesbury/Pastoli tests.

p. 11

Legal principles established

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  • A beneficiary of a deceased's estate need not obtain letters of administration to commence constitutional proceedings alleging violation of her own rights
  • After the 2010 Constitution, a party may challenge administrative action either by judicial review or by constitutional petition under Articles 22 and 23; the two systems complement each other
  • A Minister's appeal under the Land Adjudication Act or Land Consolidation Act cannot be entertained over land that is already registered and titled; jurisdiction is everything
  • An appeal before the Minister may not be advanced by a non-party to the objection proceedings on new grounds and evidence

Court orders

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  1. 1.The proceedings and the decision of the 1st respondent in Minister's Appeal No. 119/2020 are quashed and set aside
  2. 2.Costs of the petition to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(1), 2(4), 3(1), 10, 21, 22, 23, 25(c), 27, 28, 35(b), 40(6), 47, 50(1), 159(2)(c), 162(2)(b), 165(3), 258, 259(1), 260
  • Environment and Land Court ActSection 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4, 10, 11
  • Land Adjudication ActCap 283, Sections 28, 29(1)
  • Land Consolidation ActCap 284, Section 29(1)
  • Land Registration ActSections 24, 25, 28, 80
  • Fair Administrative Action Act2016, Section 4
  • Evidence ActSections 107-112
  • Civil Procedure RulesOrder 53
  • Law Reform ActSections 8 & 9

Cases cited (43)

  • Meshack Moturi Siro vs National Land Commission & 7 others
    (2021) eKLR
  • Daniel N. Mugendi vs K.U & others
    (2013) eKLR
  • Mwangi Stephen Murithi vs National Land Commission
    (2018) eKLR

    A party is entitled to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair

  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR

    Precision in pleadings; locus standi guided by Article 258 absent bad faith

  • Republic vs Paul Kihara Kariuki (A.G.) & 2 others Exparte Law Society of Kenya
    (2020) eKLR
  • Godfrey Paul Okutoyi & 2 others vs Habil Olaka & another
    (2018) eKLR
  • Anaritia Karimi Njeru vs Republic
    (1979) eKLR

    Pleadings must set out facts with a reasonable degree of precision

  • Lipisha Consortium Ltd and another vs Safaricom Ltd
    (2015) eKLR
  • Kweri vs Beehive Media Ltd and another, Capwell Industries Limited (I.P)
    Constitutional Petition 321 of 2021 (2023) KHKEHC 2684 (KLR)
  • Chief Land Registrar vs Noah Tirop
    (2018) eKLR

    Beneficiaries need not file claims in unison; replying affidavit showed grievance understood with precision

  • Jonathan Munene vs A.G.
    (2021) eKLR
  • Sollo Nzuki vs Salaries and Remuneration Commission & another
    (2019) eKLR

    Courts welcome every person with a bona fide case on alleged breach of constitutional rights

  • Carton Manufactures Ltd vs Prudential Printers Ltd
    (2013) eKLR

    What discloses a cause of action

  • IEBC vs National Super Alliance Kenya & 6 others
    (2017) eKLR

    Liberty to choose avenue to challenge decisions of quasi-judicial bodies

  • Mohamed Ahmed Khalid & others vs Director Land Adjudication & 2 others
    (2013) eKLR

    Exhaustion of statutory dispute-resolution processes before approaching court

  • Justus Mugaa M'Impwi vs DLASO Tigania West/East District & another
    (2018) eKLR
  • Reuben Mwongela M'Itelekwa vs Paul Kigea Nabea & others
    (2019) eKLR

    Statute-anchored disputes raise no constitutional issues

  • Geoffrey Muthinja Kiburi & others vs Samuel Munga Henry & others
    (2015) eKLR

    Purpose of the doctrine of exhaustion

  • Mutanga Tea & Coffee Company Limited vs Shikara Limited & Another
    (2015) eKLR

    Promotion of alternative dispute resolution under Article 159(2)(c)

  • Kenya Human Rights Commission vs NGO Board
    (2016) eKLR

    Court not limited to traditional judicial review grounds under Article 47

  • Communication Commission Kenya vs Royal Media Service Ltd
    (2014) eKLR

    Entitlement to frame grievance as constitutional question; judicial review elevated to constitutional level

  • Marbury vs Madison
    5 US 137 (1803)

    Judicial review of legislation and courts' place in upholding the Constitution

  • Pharmaceutical Manufacturers Association of South Africa exparte President of the Republic of South Africa & another
    CCT 31/19 (2000) ZACC 1

    Control of public power by courts through judicial review is a constitutional matter

  • Masai Mara (SOPA) Ltd vs Narok County Government
    NRB HC Petition No. 336 of 2015

    Administrative law actions and remedies subsumed in the Constitution after 2010

  • Child Welfare Society of Kenya vs Republic and 2 others exparte Child in Family Focus (K)
    (2017) eKLR

    Judicial review elevated to a constitutional level; systems complement each other

  • Judges & Magistrates Vetting Board vs Centre For Human Rights and Democracy
    (2014) eKLR

    Judicial review safeguards rule of law and ensures decision-makers are reviewable

  • Bernard Kibor Kitur vs Alfred Kiptoo Keter & another
    (2018) eKLR

    Affidavit evidence is personal to the deponent; hearsay inadmissible

  • Raila Odinga vs IEBC
    (2013) eKLR

    Balance of proof and presumption of regularity of acts of public bodies

  • Samson Gwer & 5 others vs Kenya Medical Research Institute
    (2020) eKLR

    Party making averments must establish them; higher standard of proof in constitutional claims

  • Veronica Njeri Waweru vs City Council of Nairobi and others
    (2012) eKLR

    Court determines from facts set out whether rights were violated

  • Rashid Odhiambo & 245 others vs HACO Industries
    C.A No. 110 of 2001
  • Judicial Service Commission vs Mbalu Mutava & another
    (2014) eKLR

    Administrative actions subject to Article 47(1) principles of legality, reasonableness and procedural fairness

  • AG & another vs Randu Nzai Ruwa & others
    (2016) eKLR

    Objective test of reasonableness applies to the Minister's actions

  • Republic vs Firearm Licensing Board & another
    (2019) eKLR

    Scope of administrative action, procedural impropriety and irrationality under Article 47 and FAAA

  • Pastoli Kabale vs District Local Government Council and others
    (2008) 2 E.A 300

    Illegality, irrationality and procedural impropriety as grounds for judicial review; acting without jurisdiction is illegality

  • Council of Civil Unions vs Minister for the Civil Service
    (1985) A.C. 2
  • Bukoba Gymkana Club (application)
    (1963) E.A 478
  • Republic vs Chairman, Meru Central Land Dispute Tribunal and others
    (2018) eKLR

    Tribunal bereft of jurisdiction over registered land

  • Kimwele Kithoka & others vs Deputy County Commissioner Kyuso Sub County and 7 others
    (2022) eKLR
  • Republic vs Special District Commissioner and another
    (2006) eKLR

    Evidence recorded by the Minister to be considered alongside DLASO evidence and ruling

  • Republic vs Deputy County Commissioner Tigania West Subcounty & another Exparte Andrew M'Ibiri M'Mwirabua
    (2021) eKLR

    Court must rein in tribunals that run wild and amok; proportionality review

  • Law Society of Kenya vs Centre for Human Rights and Democracy & 11 others
    (2014) eKLR

    Tribunals deviating from delineated legal pathway must be pulled back by the court

  • Suchan Investment Ltd vs Minister of National Heritage & Culture & others
    (2016) eKLR

    Proportionality means assessing whether decision was within range of rational decisions

Jurisdiction invoked
Articles 22, 23, 47, 165(3) of the Constitution; Section 13 of the Environment and Land Court Act

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, "Rhodah Kuri Mohamed v Deputy County Commissioner Buuri East Subcounty & another; Kirimi & 3 others (Interested Parties)", Case Analysis (2023). Petition E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21522/eng@2023-11-08

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