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ELCDismissedJudicial Review (Amended Notice of Motion dated 8th September 2022, amended 17th November 2022)· [2024] KEELC 421 (KLR)

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)

Environment and Land Court
30 January 2024
3,952 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The ex parte Applicant sought an order of certiorari to quash the decision of the 1st Respondent (the Deputy County Commissioner, acting on appeal to the Minister in Minister's Appeal No. 436 of 2019) awarding land parcel 130 Ndatani Adjudication Section to Fredrick Mungalo Munyao (deceased), represented by the interested party, and an order of prohibition against its enforcement. He claimed ancestral ownership, that persons in the chain of sale had no capacity to sell, that a survey was conducted in his absence in violation of natural justice, that the Minister relied on unnamed 'locals' and a disputed sale agreement, and that he was condemned unheard. The Respondents and the interested party countered that the Applicant exhausted all adjudication stages (committee, arbitration board, objection, and appeal to the Minister), was heard and cross-examined witnesses, that there was public participation before the survey, and that judicial review examines process rather than merits. The court applied section 13(3) of the Land Adjudication Act, holding that the survey could lawfully proceed in the Applicant's absence since he was aware of the exercise and could have appointed an agent. The reference to 'local people with clear knowledge of ownership' was held to concern the adjudication committee's statutory composition under sections 6 and 20. The Applicant was found to have been accorded a fair hearing, and the Minister's decision was not tainted with illegality, irrationality or procedural impropriety. The Notice of Motion was dismissed with costs on 30th January 2024 at Kitui.

Key legal issues

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01

Whether the survey conducted in the Applicant's absence offended natural justice

Holding

The survey was lawful; the Applicant was informed of the exercise and could have appointed an agent under section 13(3)

Reasoning

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.

p. 6
02

Whether the Minister's reference to unnamed 'locals' amounted to consideration of irrelevant matters

Holding

No - the reference was to the adjudication committee's composition under sections 6 and 20 of the Land Adjudication Act

Reasoning

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.

p. 7
03

Whether the Applicant was denied a fair hearing before the 1st Respondent

Holding

The Applicant was heard: he testified, was cross-examined, called a witness and cross-examined the interested party

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Amended Notice of Motion dated 8th September 2022 and amended on 17th November 2022 is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActSections 5, 6, 13(1)(2)(3), 20, 26, 29 (CAP 298/284)
  • Fair Administrative Action ActSection 7(2)

Cases cited (4)

  • Republic v Kenya Revenue Authority & another; Shapi & 3 others (Exparte)
    Judicial Review E038 of 2021 [2021] KEHC 401 (KLR)
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Kenya Re-Insurance Corporation v National Land Commission
    [2018] eKLR
  • Republic vs. Special District Commissioner & another
    [2006] eKLR
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

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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 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.