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ELCDismissedJudicial Review (Notice of Motion dated 16th August 2022)· [2024] KEELC 241 (KLR)

Republic v Attorney General & 2 others; Mulavu (Exparte Applicant); Ngoloi (Interested Party) (Environment and Land Case Judicial Review Application E010 of 2022) [2024] KEELC 241 (KLR)

Environment and Land Court
23 January 2024
5,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a son's challenge to a land appeal ruling, confirming that a title deed wrongly issued during a pending appeal does not invalidate the appeal's outcome.

What this practically means

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Executive summary

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The Ex parte Applicant moved the court by Notice of Motion dated 16th August 2022 seeking certiorari to quash the decision of the 2nd Respondent (the Deputy County Commissioner) in Appeal to the Minister No. 351/2001 delivered on 1st March 2022, prohibition against its implementation, mandamus compelling registration of Land Parcel No. 499 Kyusyani Adjudication Section in his favour, and leave to operate as a stay. The dispute arose from land adjudication commencing in 1990, with competing claims by the families of Mulavu Nditu Mung'ela and Ngoloi Mulewa through the committee, arbitration, objection and ministerial appeal levels. The Respondents opposed, contending the applicant was challenging merits rather than process, and the Interested Party objected to his joinder and to the merits. The court framed three issues. First, it found the Interested Party improperly joined since the suit land is registered in the name of his deceased father and no grant had been taken out over the estate; the personal representative ought to have been joined. Second, while the issuance of the title deed in 2013 while the ministerial appeal was pending contravened Section 28 of the Land Adjudication Act, which envisages a restriction pending appeal, it did not vitiate the appeal or indicate pre-determination. Third, the court found the appeal proceedings fair: both parties were heard, the land was visited, the record was considered, and no prejudice was demonstrated. The Notice of Motion was dismissed with costs to the Respondents and the Interested Party.

Key legal issues

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01

Whether the Interested Party was properly joined

Holding

He was improperly joined because the suit land is registered in the name of his deceased father and no grant of letters of administration has been taken out over the estate; the personal representative ought to have been joined instead.

Reasoning

In court litigation (as opposed to adjudication proceedings under Section 13(5) of the Land Adjudication Act) suits by or against estates must be brought against the legal representative. Relying on Trouistik Union International v Jane Mbeyu and In re Estate of John Karani Keberenge, only an executor or administrator can litigate for a deceased estate. The Interested Party's name should be struck out.

p. 8
02

Whether issuance of the title deed while the appeal was pending was irregular and vitiated the appeal

Holding

The issuance was irregular since Section 28 of the Land Adjudication Act required a restriction pending the appeal, but it did not vitiate the appeal proceedings or indicate a predetermined decision.

Reasoning

Section 28 envisages registration subject to a restriction enduring until determination of an appeal; issuance of the title deed before determination contravened that provision. However, the issue was not raised in the Notice of Motion, no evidence showed the 2nd Respondent knew of it, and following Makungo and the court's own earlier decision, the appeal could still be heard.

p. 9
03

Whether the appeal proceedings before the 2nd Respondent violated fair administrative action

Holding

No. Both parties were heard, land was visited, the record was considered, and no prejudice was shown; the short notice and delay did not breach the Fair Administrative Actions Act.

Reasoning

The record showed the applicant testified, cross-examined, and confirmed the grounds of appeal. No request for witnesses or adjournment was refused. There are no strict timelines in the Land Adjudication Act, and the applicant occupied the suit land so the delay caused no prejudice. Consideration of parcel 212 and the RMC 45/94 status quo order was permissible under Section 12(1).

p. 10

Legal principles established

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  • An adjudication officer or the Minister retains jurisdiction to hear an appeal even where a title deed was irregularly issued while the appeal was pending.
  • Persons directly affected by judicial review proceedings must be served and suits against deceased estates must be brought against their legal representatives in court litigation.
  • An appeal to the Minister under Section 29 of the Land Adjudication Act is an appeal like any other; the appellate authority may consider the record and take fresh evidence.

Court orders

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  1. 1.The application is dismissed with costs to the Respondents and the Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 53 Rules 3(1), 3(2)
  • Law of Succession ActSections 3, 79, 82(a)
  • Land Adjudication Act CAP 284Sections 12(1), 13(5), 27(3), 28, 29
  • Land Registration Act 2012Section 26
  • Fair Administrative Actions Actgenerally

Cases cited (11)

  • Republic v Nairobi City County ex-parte Gurchan sign Sihora & 4 others (2014) eKLR
    (2014) eKLR
  • Melickzedeck Shem Kamau v. Beatrice Waithera Maina & 2 others (2020) eKLR
    (2020) eKLR
  • Republic v Kenya National Examination Council ex parte Gathenji and 9 others (1997) eKLR
    (1997) eKLR
  • Dominic Musei Ikombo v Kyule Makau [2019] eKLR
    [2019] eKLR
  • Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR
    [1993] eKLR
  • Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR
    [2018] eKLR
  • In re Estate of John Karani Keberenge (Deceased) [2018] eKLR
    [2018] eKLR
  • Republic v Deputy County Commissioner, Kitui West Subcounty; Malonza (Exparte) (Miscellaneous Civil Application 10 of 2021) [2022] KEELC 2723 (KLR)
    [2022] KEELC 2723 (KLR)
  • Euton Njuki Makungo v Republic & 2 others [2014] eKLR
    [2014] eKLR
  • R – v- Lancashire County Council Ex p Gayer, (1980) 1 WLR 1024
    (1980) 1 WLR 1024
  • Matwanga Kilonzo v District Commissioner, Kitui & Another [2021] eKLR
    [2021] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules

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 Attorney General & 2 others; Mulavu (Exparte Applicant); Ngoloi (Interested Party) (Environment and Land Case Judicial Review Application E010 of 2022) [2024] KEELC 241 (KLR)", Case Analysis (2024). Judicial Review (Notice of Motion dated 16th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/241/eng@2024-01-23

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