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ELCPartially AllowedJudicial Review Case (Notice of Motion dated 24th September 2022)· [2024] KEELC 799 (KLR)

Republic v Deputy County Commisioner, Kilungu Sub-County & 4 others; Sumuni (Exparte Applicant); Muindi & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E012 of 2022) [2024] KEELC 799 (KLR)

Environment and Land Court
14 February 2024
3,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled the Lands Minister wrongly heard a land appeal filed 204 days late, so that decision can be challenged.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th September 2022, the Ex-parte Applicant Benjamin Mbithi Sumuni sought certiorari to quash the decision of the 1st Respondent (the Minister) in Appeal to the Minister Case No. 442 of 2021 delivered on 22/06/2022, and mandamus to compel the Director of Land Adjudication and Settlement and the Land Registrar, Makueni, to rectify the register over Land Parcels Nos. 1840, 1873 and 1874 Kyamuoso Adjudication Section and to enter him as proprietor, plus costs. The dispute arose from land adjudication proceedings opened in 2007: the Applicant won before the Committee, lost on appeal to the Arbitration Board, won in objection proceedings decided by the Land Adjudication Officer on 11/01/2021, and the Interested Parties then appealed to the Minister. The Applicant contended the appeal to the Minister was filed on 4/08/2021, outside the 60-day limitation in Section 29 of the Land Adjudication Act, without leave, hence the Minister acted in excess of jurisdiction. The Respondents and Interested Parties argued that payment receipts dated 15/01/2021 showed timely filing, that the Applicant participated without objection and waived the point, and that the application attacked the merits rather than the process. The court held that a payment receipt is not an appeal under Section 29, which requires a written appeal specifying grounds; the appeal was filed about 204 days late and no leave was sought. The Minister therefore entertained a time-barred appeal, acting illegally and unprocedurally, and the Applicant's participation could not cure the excess of jurisdiction. The application was allowed to the extent that the 1st Respondent acted in excess of her jurisdiction; no consequential orders of certiorari or mandamus were expressly set out, and no costs order was recorded.

Key legal issues

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01

Whether the Appeal to the Minister in Case No. 442 of 2021 was filed out of time

Holding

The appeal was filed about 204 days after the Land Adjudication Officer's decision, well outside the 60-day period under Section 29(1) of the Land Adjudication Act; no leave to file out of time was sought.

Reasoning

Section 29(1) permits an aggrieved person to appeal to the Minister within 60 days, by delivering an appeal in writing specifying grounds and sending a copy to the Director of Land Adjudication. The objection decision was delivered on 11/01/2021, so limitation expired around 11/03/2021. The appeal form and grounds were stamped and filed on 4/08/2021. The Interested Parties' payment receipt dated 15/01/2021 did not constitute an appeal under Section 29. No leave was sought. The Minister therefore acted illegally and unprocedurally.

p. 8
02

Whether the 1st Respondent acted ultra vires or in excess of jurisdiction

Holding

Yes; the 1st Respondent could only hear and determine an appeal lodged within 60 days under Section 29, so hearing a time-barred appeal was in excess of jurisdiction.

Reasoning

Applying the judicial review principles of illegality, irrationality and procedural impropriety from Council of Civil Service Unions v Minister for Civil Service, the court found that hearing an appeal outside the statutory limitation amounted to illegality and excess of jurisdiction. Participation of the Applicant in the appeal could not cure the excess of statutory power, since judicial review challenges the decision-making process, not the merits.

p. 8

Legal principles established

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  • A payment receipt is not an appeal within the meaning of Section 29 of the Land Adjudication Act; an appeal to the Minister must be in writing specifying the grounds of appeal and filed within 60 days, failing which the Minister lacks jurisdiction.
  • Judicial review concerns the decision-making process, not the merits of the decision.

Court orders

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  1. 1.The application was allowed to the extent that the 1st Respondent acted in excess of her jurisdiction in entertaining an appeal that was filed out of time

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 26
  • Registered Land Act (repealed)Sections 142 and 143
  • Land Registration Act, 2012Sections 79 and 80
  • Fair Administrative Action ActSection 7(2)

Cases cited (9)

  • Council of Civil Service Union & Others Vs the Minister for Civil Service
    [1985] AC 374
  • Republic v Cabinet Secretary Ministry of Lands & Physical Planning & 3 others Ex parte Applicant: John Mbiri Njagi; Joseph Kaguura Mbugi (Interested Party)
    [2021] eKLR
  • Watuku Mutsiemi & another v Republic & 5 others
    [2018] eKLR
  • Republic v Deputy County Commissioner Kitui West Sub County & Another; Mukinya Muvevi & Another (Interested Parties) Ex Parte Justus Mwendwa Liku
  • Republic v Cabinet Secretary for Lands and Physical Planning & 2 Others; Eustace Kariuki Mwatthi & Another (Interested Parties)
    (2020) eKLR
  • Republic v Ministry of Lands and Settlement & 3 others Ex parte Kahareri Buri Karugu; Efureith Irima Mugo (Interested Party/Applicant)
    [2019] eKLR
  • Municipal Council of Mombasa Vs and Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic Vs. Kenya Revenue Authority Exparte Yaya Towers Limited
    (2008) eKLR
  • Kimwele Kithoka & 26 others v Deputy County Commissioner Kyuso Sub-County & 7 others
    [2022] eKLR
Jurisdiction invoked
Judicial review jurisdiction over Land Adjudication Act appeals (certiorari and mandamus under Section 7(2) of the Fair Administrative Action Act as urged by the Applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Deputy County Commisioner, Kilungu Sub-County & 4 others; Sumuni (Exparte Applicant); Muindi & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E012 of 2022) [2024] KEELC 799 (KLR)", Case Analysis (2024). Judicial Review Case (Notice of Motion dated 24th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/799/eng@2024-02-14

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