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ELCDismissedJudicial Review / Miscellaneous Application (ex parte applicant's Notice of Motion dated 8th June 2023)· [2025] KEELC 669 (KLR)

Republic v Cabinet Secretary in Charge of Lands & 6 others; Munyithya (Exparte Applicant) (Judicial Review E003 of 2023) [2025] KEELC 669 (KLR)

High Court of Kenya
20 February 2025
4,201 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 High Court dismissed a landowner's bid to overturn a land adjudication decision because he could not prove his allegations with proper documents.

What this practically means

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Executive summary

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The ex parte applicant sought judicial review orders of certiorari, mandamus and prohibition to quash a decision of the Land Adjudication and Settlement Officer (deputy to the Minister's appeal) signed 13th June 2022, which registered plots 1374, 1375 and 1376 Kyuso 'C' Adjudication Section in the name of the 7th Respondent, Kalunda Musyoki. The applicant argued that the 7th Respondent's appeal to the Minister was filed out of time under Section 29 of the Land Adjudication Act; that his own Appeal No. 96 of 2020 in respect of parcel 1069 was never determined; that he was wrongly recorded as respondent rather than appellant; and that the proceedings violated natural justice, Article 47 of the Constitution and the Fair Administrative Action Act. The State respondents filed grounds of opposition, and the 7th Respondent denied any procedural impropriety, contending the parcels were subdivisions of her parcel 1069. The court framed two issues: whether the 7th Respondent's appeal was out of time, and whether the proceedings and decision were fair, lawful and procedural. On the first, the court found no proof of the alleged filing date of 22nd November 2019, noting the applicant failed to file and serve leave-stage documents as required by Order 53 Rule 4. On proof of the applicant's own appeal, the court found he produced no Form of Appeal and did not prove he filed Appeal No. 96 of 2020. Applying Pastoli, the court held the 2nd Respondent acted within jurisdiction, heard the parties and their witnesses, and committed no illegality, irrationality or procedural impropriety. The Notice of Motion dated 8th June 2023 was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the 7th Respondent's appeal to the Minister was filed out of time

Holding

The ground failed; there was no proof in the court record that the appeals were filed out of time.

Reasoning

The applicant relied on forms of appeal allegedly dated 22nd November 2019, but the annexure DKM3 was never attached to the supporting affidavit, and the documents filed at the leave stage were never filed and served as directed under Order 53 Rule 4. The forms in the record lacked the claimed date and were unsigned, so the out-of-time allegation was unproved.

p. 7
02

Whether the applicant proved he filed Appeal No. 96 of 2020 in respect of parcel 1069

Holding

The applicant did not prove that he filed Appeal No. 96 of 2020 or that it related to parcel 1069.

Reasoning

The applicant produced only a receipt dated 13th November 2018 referencing parcel 1069, but did not produce his Form of Appeal, and nothing showed the appeal number allocated. The documents on record showed appeals 93 and 96 of 2020 as having been filed by the 7th Respondent and relating to parcels 1374, 1375 and 1376.

p. 8
03

Whether the 2nd Respondent's proceedings and decision violated natural justice, the Land Adjudication Act, the FAAA and the Constitution

Holding

No illegality, irrationality or procedural impropriety was established; the decision was within jurisdiction and fairly made.

Reasoning

The 2nd Respondent dealt with appeals 93 and 96 of 2020 concerning parcels 1374-1376; parties were properly summoned, testified, called witnesses and cross-examined. The decision-maker considered the evidence and prior tribunal proceedings. Applying the Pastoli criteria, the decision was not unlawful, grossly unreasonable or procedurally unfair.

p. 9

Legal principles established

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  • A party alleging that an appeal to the Minister was filed out of time must prove the filing date; without proof, the challenge fails.
  • A party asserting that it filed an appeal must produce the Form of Appeal and evidence of allocation of an appeal number; a receipt alone does not prove filing.
  • Judicial review concerns the decision-making process, not the merits; the applicant must show illegality, irrationality or procedural impropriety.

Court orders

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  1. 1.The Notice of Motion dated June 8, 2023 is hereby dismissed.
  2. 2.Costs are awarded to the Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47; Section 50 (as cited by counsel)
  • Fair Administrative Action ActSection 4; Section 7
  • Land Adjudication Act Cap 284 Laws of KenyaSection 29
  • Civil Procedure RulesOrder 53 Rule 4

Cases cited (7)

  • Super Nova Properties Limited v The National Land Commission (2019) eKLR
    (2019) eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd, C.A Civil Appeal No. 185 of 2001
    (2002) eKLR
  • Republic v. Public Procurement Administrative Review Board and another ex-parte Intertek Testing Services Ea Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & Another
    (2022) eKLR
  • Republic v. Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
  • Republic v. Public Procurement Administrative Review Board & 2 others ex-parte Rongo University
    (2018) eKLR
  • Suchan Investment vs. The Ministry of National Heritage and Culture
    (2016) eKLR
Jurisdiction invoked
Article 47 of the Constitution of Kenya, 2010 and Section 7 of the Fair Administrative Action Act; Order 53 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 Cabinet Secretary in Charge of Lands & 6 others; Munyithya (Exparte Applicant) (Judicial Review E003 of 2023) [2025] KEELC 669 (KLR)", Case Analysis (2025). Judicial Review / Miscellaneous Application (ex parte applicant's Notice of Motion dated 8th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/669/eng@2025-02-20

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