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ELCPartially AllowedNot stated in the judgment (Judicial Review Notice of Motion dated 13th February 2023)· [2024] KEELC 7469 (KLR)

Republic v Deputy County Commissioner Makueni County & 2 others; mwalu (Interested Party); Ngumbi (Exparte Applicant) (Environment and Land Judicial Review Case 2 of 2023) [2024] KEELC 7469 (KLR)

Environment and Land Court
6 November 2024
4,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The court quashed a land adjudication decision because officials skipped the dispute procedure required by the Land Adjudication Act.

What this practically means

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Executive summary

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The Ex Parte Applicant, Josiah Mwambi Ngumbi, moved the court by Notice of Motion dated 13th February 2023 under Order 53 Rules 1(1), (2) and (4) of the Civil Procedure Rules seeking certiorari to quash the decision of the Deputy County Commissioner Makueni County dated 8/9/2022 in Minister's Appeal Case No. 422 of 2020, prohibition against its implementation, and mandamus compelling entry of his name on the adjudication register for Plot No. 1530. He contended that the appeal was decided in favour of a deceased person represented by a non-family member, that the Land Arbitration Board overturned the Land Adjudication Committee's decision without a hearing under Section 22 of the Land Adjudication Act, and that the Deputy County Commissioner relied on non-existent proceedings and irrelevant documents, contrary to Article 47 of the Constitution and the Fair Administrative Action Act. The Respondents countered that the applicant was heard and could cross-examine, that letters of administration are unnecessary in adjudication proceedings, and that the application wrongly attacked the merits of the decision. The Interested Party did not respond. The court, applying the Pastoli illegality/irrationality/procedural impropriety framework, found no evidence that an objection under Section 26 had been determined or that the adjudication register was closed, and that the parties had failed to follow the statutory dispute resolution mechanism. It held the applicant's grievance lay with the decision-making process, making judicial review available. The court issued certiorari and prohibition but declined the mandamus, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Deputy County Commissioner's decision of 8/9/2022 was tainted with illegality, irrationality or procedural impropriety

Holding

Yes. The decision was amenable to judicial review because the parties, including the decision-maker, did not follow the dispute resolution procedure laid down in the Land Adjudication Act; no objection under Section 26 had been determined and no evidence showed the register was closed, so the appeal to the Minister under Section 29(1) was procedurally misconceived.

Reasoning

The court traced the statutory mechanism: Committee under Section 19, appeal to the Arbitration Board under Section 21, hearing under Section 22, objections under Section 26 and appeals to the Minister under Section 29(1). The record showed the dispute was first heard by the Committee, but there were no proceedings to show it was heard and determined by the Arbitration Board and the Land Adjudication Officer. The Minister's appeal therefore emanated from a non-determined objection, and the parties ought to have followed the mechanism laid out by the Act.

p. 9
02

Whether the applicant is challenging the merits or the process of the decision

Holding

The applicant was in reality aggrieved by the decision-making process, not the merits, and thus a judicial review remedy was available.

Reasoning

Although the Respondents argued the application attacked the merits of the decision, the court found that when the complaints were considered as a whole, the grievance was that the 1st Respondent did not follow the procedure laid out by the Act. Being an attack on process rather than merits, judicial review was the appropriate remedy.

p. 9

Legal principles established

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  • Where a dispute as to entitlement to property is governed by a statutory dispute resolution mechanism, that statutory procedure should be utilized
  • Judicial review is concerned with the decision-making process and not the merits of the decision itself

Court orders

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  1. 1.An order of Certiorari is hereby issued bringing into this court for the purposes of being quashed the decision of the Deputy County Commissioner Makueni County dated 8/9/2022
  2. 2.An order of Prohibition is hereby issued prohibiting the 2nd Respondent from implementing the the decision of the Deputy County Commissioner Makueni County dated 8/9/2022
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1(1), (2) and (4)
  • Constitution of Kenya, 2010Article 47(2)
  • Fair Administrative Action ActSection 4(3)
  • Land Adjudication ActSections 19(2) and (3), 21(3) and (4), 22, 25, 26, 26A, 27, 28, 29 and preamble

Cases cited (5)

  • Republic v Deputy County Commissioner Lower Yatta Sub County & another, Munyao (Exparte); Deputy County Commissioner Lower Yatta Sub-County & another (Interested Party)
    Judicial Review 17 of 2021 (2022) KEELC 2722 (KLR)
  • Justice Amraphael Mbogoli Msagah v Chief Justice of the Republic of Kenya & 7 others
    (2008) eKLR
  • Pastoli v Kabale District Local Government Council and Others
    (2008) 2 E.A 300
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    C.A Civil Appeal No. 185 of 2001
  • Abdalla Mangi Mohammed v Lazarus & 5 others
    (2012) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 Rules 1(1), (2) and (4) of the Civil Procedure Rules

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 Makueni County & 2 others; mwalu (Interested Party); Ngumbi (Exparte Applicant) (Environment and Land Judicial Review Case 2 of 2023) [2024] KEELC 7469 (KLR)", Case Analysis (2024). Not stated in the judgment (Judicial Review Notice of Motion dated 13th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7469/eng@2024-11-06

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