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ELCAllowedJudicial Review application, Notice of Motion dated 8th May 2023 (Homa Bay High Court)· [2024] KEELC 1621 (KLR)

Oyier v Deputy County Commissioner, Suba on behalf of the Minister for Lands & Settlement & another; Ogutu & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2023) [2024] KEELC 1621 (KLR)

High Court of Kenya
13 March 2024
1,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court threw out a land adjudication decision because officials missed a 60-day appeal deadline and skipped proper hearing procedures.

What this practically means

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Executive summary

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The Ex parte Applicant, Michael Ogweno Oyier, sought orders of certiorari to quash a decision read by the Deputy County Commissioner for Suba-County (acting for the Minister for Lands and Settlement) on 22nd November 2022 over Land Parcel No. 706 in Kitawa Adjudication Section, and an order of prohibition restraining the District Land Adjudication Officer from implementing that decision, including registering the parcel in the names of the interested parties. The dispute traced back through Civil Suits 12 of 1991 and 254 of 1992 and Land Adjudication Arbitration Board Case 14 of 2011, which had determined the land belonged to the applicant, his brother and mother. The applicant contended the Minister's appeal was filed out of the 60 days prescribed by section 26 of the Land Adjudication Act without leave, and that the 1st respondent unilaterally amended a hearing fixed for 2nd March 2022 and delivered a ruling without a hearing. The respondents and interested parties maintained the applicant participated in the hearing, that the site was visited on 13th May 2022, and that the decision was lawful. The court held that the 1st respondent unprocedurally and unreasonably amended the hearing, that the decision was statute-barred, and that no leave for the late appeal was obtained; the process thus fell below Article 47 and the Fair Administrative Action Act. Lacking jurisdiction, the decision was ultra vires and a nullity. The application was allowed in full - certiorari, prohibition and costs - and delivered at Homa Bay on 13th March 2024.

Key legal issues

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01

Whether the 1st respondent acted ultra vires and without jurisdiction in rendering the decision of 22nd November 2022

Holding

Yes. The 1st respondent unprocedurally and unreasonably amended the hearing fixed for 2nd March 2022, delivered a decision that was statute-barred (the appeal having been filed out of the 60 days prescribed under section 26 of the Land Adjudication Act without leave), and therefore acted ultra vires and without jurisdiction.

Reasoning

The court found the appeal to the Minister was filed out of the 60-day period prescribed by section 26 of the Land Adjudication Act and without leave to file out of time. The hearing fixed for 2nd March 2022 was unprocedurally amended. These failings fell below the Article 47 standard of lawful, reasonable and procedurally fair administrative action, and deprived the 1st respondent of jurisdiction, rendering the decision a nullity liable to be quashed.

p. 4
02

Whether the applicant was accorded procedural fairness under Article 47 and the Fair Administrative Action Act

Holding

No. The respondents failed to accord the applicant the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Reasoning

The court invoked Article 47(1) of the Constitution as operationalized by section 4 of the Fair Administrative Action Act, No. 4 of 2015. It relied on the audi alteram partem rule and the duty of courts and tribunals under Article 159(1) to hear parties. The unilateral amendment of the hearing date and the failure to accord a hearing on the ruling meant the process fell below the constitutional standard of procedurally fair administrative action.

p. 4

Legal principles established

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  • Judicial review is concerned with the legality of the decision-making process, not the merits of the decision.
  • A decision-making body without jurisdiction renders a nullity, and a party who has not been heard is not bound.
  • Lack of jurisdiction renders a decision of a court, tribunal or decision-making body null and void.
  • Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Court orders

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  1. 1.An order of certiorari directed at the Deputy County Commissioner in charge of Suba-County, acting on behalf of the Minister for Lands and Settlement, quashing the decision read to the parties on 22nd November 2022 in respect of Land Parcel No. 706 in Kitawa Adjudication Section
  2. 2.An order of prohibition directed at the District Land Adjudication Officer in charge of Suba Sub-County and Kitawa Adjudication Section, prohibiting implementation of the Deputy County Commissioner's decision of 22nd November 2022, including registering the land in the names of the interested parties
  3. 3.Costs of the application provided for in favour of the applicant
Jurisdiction invoked
Article 23(3)(f) of the Constitution of Kenya, 2010 - orders of judicial review (certiorari and prohibition); leave granted under Order 53 of the Civil Procedure Rules, 2010

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, "Oyier v Deputy County Commissioner, Suba on behalf of the Minister for Lands & Settlement & another; Ogutu & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2023) [2024] KEELC 1621 (KLR)", Case Analysis (2024). Judicial Review application, Notice of Motion dated 8th May 2023 (Homa Bay High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1621/eng@2024-03-13

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