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ELCDismissedPetition dated 25th February 2022 (Machakos)· [2024] KEELC 4611 (KLR)

Muthoka & another (Suing as the administrators of the Estate of Mwangangi Muthoka) v Musyimi (Suing as the administrator of the Estate of Musyimi Kilonzo) & 3 others (Environment and Land Constitutional Petition 15 of 2020) [2024] KEELC 4611 (KLR)

Environment and Land Court
10 June 2024
3,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A landowner lost his constitutional challenge to a land adjudication appeal decision because he was heard, and the court only reviews process, not the outcome.

What this practically means

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Executive summary

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The Petitioner, Josphat Mwanzia, challenged by an amended Petition dated 25th February 2022 the judgment of 28th June 2017 of the Deputy County Commissioner sitting as delegate of the Minister in Land Adjudication Appeal No. 228 of 2007, which dismissed the appeal over parcel No. 1525 Kangonde/Masinga Adjudication Section while allowing it over parcels 2330 and 2331. He sought certiorari to quash that decision, prohibition against registration of the 1st Respondent, mandamus directing excision and registration of parcel 1525 in his name relying on a 1973 Yatta DMCC judgment, and alternatively a rehearing before another DCC. The 1st Respondent opposed, contending the Petition was res judicata given HC JR 112 of 2017, that the Petitioner participated in the appeal, and that it was an abuse of process. The 2nd–4th Respondents filed Grounds of Opposition maintaining the Petitioner exhausted the Land Adjudication Act process, was heard, and that the Petition failed the Anarita Karimi Njeru threshold. The court framed two issues: entitlement to the judicial review orders and the merits. Relying on CCSU and Municipal Council of Mombasa, it held judicial review examines process not merits. The record showed the Petitioner, one of the appellants, testified with witnesses and received the DCC's verdict; no bias, procedural impropriety or breach of natural justice was established, and the 1973 judgment was in fact decided in favour of the 1st Respondent. No violation of the cited constitutional articles was demonstrated. The Petition was dismissed with costs on 10th June 2024 by Christine Ochieng, Judge, at Machakos.

Key legal issues

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01

Whether the Petitioner was denied a fair hearing before the Minister's delegate (DCC) in Appeal No. 228 of 2007

Holding

No; the Petitioner, as one of the Appellants, participated, testified with witnesses and received the decision

Reasoning

The record (annexure 'GKM 2' and 'AM8') showed the Appellants, including the Petitioner, testified and presented witnesses before the DCC, who entered judgment on 28th June 2017. The court held the sons of the deceased, including the Petitioner, were appellants, so the claim that the estate's administrators were absent could not stand, and no rule of natural justice was breached.

p. 6
02

Whether the DCC acted with bias or took into account extraneous matters

Holding

No; absent tangible evidence of bias, procedural fairness was established

Reasoning

The court held that mere allegations of bias and reliance on extraneous matters are insufficient without evidence. The DCC granted the parties audience, communicated the decision, and acted within his mandate under section 29 of the Land Adjudication Act. The court declined to re-evaluate the merits of the DCC's decision, that being outside judicial review.

p. 7
03

Whether the Yatta DMCC judgment in Civil Case No. L48 of 1973 ought to have been relied upon by the Minister

Holding

The court noted that the 1973 judgment was decided in favour of the 1st Respondent, undermining the Petitioner's reliance on it

Reasoning

The court reproduced the 1973 judgment establishing the Kwakatuta stream boundary and observed the decision favoured the 1st Respondent. The Petitioner's insistence that the Minister should have relied on it therefore did not assist him, and the DCC's finding that parcel 1525 was not in dispute and should remain registered was not shown to be unlawful.

p. 7
04

Whether the Petition met the Anarita Karimi Njeru threshold and justified constitutional/judicial review remedies

Holding

No; no violation of the cited constitutional articles was demonstrated and the remedies were refused

Reasoning

Applying the Anarita Karimi Njeru standard as urged by the 2nd–4th Respondents, the court found the Petitioner had not shown how Articles 19–50 and 159 were breached. The impugned decision disclosed no illegality, irrationality or procedural impropriety under the CCSU framework, so certiorari, prohibition and mandamus were not available.

p. 7

Legal principles established

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  • Judicial review grounds are illegality, irrationality and procedural impropriety (Lord Diplock, CCSU)
  • Judicial review concerns the decision-making process, not the merits of the decision
  • A party who participated fully in an administrative hearing cannot later claim denial of natural justice

Court orders

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  1. 1.The Petition is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 25, 27, 28, 40, 47, 48, 50 and 159
  • Land Adjudication Actsection 29
  • Crown Lands Ordinance1901

Cases cited (13)

  • John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others
    (Petition 17 of 2015) (2021) KESC 39 (KLR)
  • Kimeu Musyoka v District Commissioner Kathiani District & 10 Others
    (2019) eKLR
  • Dominic Musei Kombo v Kyule Makau
    (2019) eKLR
  • Joseph Mudamba Ojwang v John Opondo Onyango & 4 Others
    (2022) eKLR
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    (2014) eKLR
  • Republic v Attorney General & Another, Ex parte Joyce Muthoni Michuki
    (2019) eKLR
  • Gilbert Joseph Kabunjia v Land Adjudication and Settlement Officer Meru South & 3 others; County Government of Tharaka Nithi (Interested Party)
    (2019) eKLR
  • Kenya National Examination Council v Republic Ex parte Geoffrey Gathenji Njoroge & 9 Others
    (1997) eKLR
  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Baker v. Canada (Minister of Citizenship & Immigration)
    2 S.C.R. 817
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic v Cabinet Secretary, Ministry of Lands Housing and Others, Josphat Mwanzia & 3 Other Interested Parties. Ex parte Musyimi Kilonzo (HC JR 112 of 2017)
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging violation of Articles 19, 20, 21, 22, 23, 25, 27, 28, 40, 47, 48, 50 and 159; judicial review orders sought under Article 23 and Article 47)

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, "Muthoka & another (Suing as the administrators of the Estate of Mwangangi Muthoka) v Musyimi (Suing as the administrator of the Estate of Musyimi Kilonzo) & 3 others (Environment and Land Constitutional Petition 15 of 2020) [2024] KEELC 4611 (KLR)", Case Analysis (2024). Petition dated 25th February 2022 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4611/eng@2024-06-10

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