Republic v Deputy County Commissioner Mutomo Sub-County & 2 others; Munyalo (Interested Party); Kiniu (Exparte Applicant) (Judicial Review Application E011 of 2022) [2024] KEELC 421 (KLR)
The bottom line
#The Kitui Environment and Land Court dismissed a landowner's attempt to overturn a land adjudication decision because the process was fair, even though a survey happened in his absence.
What this practically means
#Executive summary
#Key legal issues
#Whether the survey conducted in the Applicant's absence offended natural justice
The survey was lawful; the Applicant was informed of the exercise and could have appointed an agent under section 13(3)
The court found the Applicant knew of the survey (he testified the surveyors came in his absence after he returned to work in Mombasa). There was public participation with notice of tentative survey dates via the local administration. Section 13(3) of the Land Adjudication Act permits proceedings in a party's absence, so the demarcation officer and surveyor were legally authorized to proceed.
Whether the Minister's reference to unnamed 'locals' amounted to consideration of irrelevant matters
No - the reference was to the adjudication committee's composition under sections 6 and 20 of the Land Adjudication Act
The court held the 1st Respondent was referring to the committee stage, whose members are residents of the adjudication section appointed under section 6 and adjudicate customary-law questions under section 20. The committee members were known and the composition appeared in the proceedings attached to the affidavits, so the complaint was unfounded.
Whether the Applicant was denied a fair hearing before the 1st Respondent
The Applicant was heard: he testified, was cross-examined, called a witness and cross-examined the interested party
The proceedings before the Minister showed the grounds of appeal were set out, the Applicant testified, was cross-examined by the respondent in the appeal and the assessors, called a witness, and cross-examined the interested party. A site visit was also conducted. There was no unfairness; nor was the Minister's acceptance of the sale agreement unlawful.
Legal principles established
#- An applicant for judicial review must show that the decision complained of is tainted with illegality, irrationality or procedural impropriety
- Under section 13(3) of the Land Adjudication Act, demarcation, recording, adjudication or arbitration may proceed in the absence of a person ordered to attend who fails to attend
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.The Amended Notice of Motion dated 8th September 2022 and amended on 17th November 2022 is dismissed with costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under the Law Reform Act and Order 53 (judicial review of decisions of the Minister/land adjudication process); grounds of review under section 7(2) of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commissioner Mutomo Sub-County & 2 others; Munyalo (Interested Party); Kiniu (Exparte Applicant) (Judicial Review Application E011 of 2022) [2024] KEELC 421 (KLR)", Case Analysis (2024). Judicial Review (Amended Notice of Motion dated 8th September 2022, amended 17th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/421/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.