Republic v Attorney General & 2 others; Kitangu & another (Ex parte) (Judicial Review E001 of 2021) [2026] KEELC 3421 (KLR)
The bottom line
#Kenya's Land Court quashed a Minister's appeal decision that gave one man 25 parcels without hearing the other affected owners.
What this practically means
#Executive summary
#Key legal issues
#Violation of rules of natural justice in the Minister's appeal
The appeal was lodged against only one of about seven affected recorded owners; the decision affected persons who were condemned unheard, violating audi alteram partem.
The appeal by the interested party targeted only Mulonzya Mathuku, yet some 25 parcels were demarcated in the names of several persons. The Minister's decision ordered registration of all parcels in the interested party's name and removal of the respondent's name, directly affecting persons such as Dorothy Mawia Kitangu who were neither appellants nor respondents in the appeal. A quasi-judicial decision directly affecting non-parties without hearing them breaches natural justice; this alone justified certiorari.
Whether the application was an appeal disguised as judicial review
No; the complaints concerned denial of hearing and exclusion from proceedings, i.e. process, not the merits.
The court examined the grounds in the application and found they attacked the denial of the right to be heard and the exclusion of parties, not the correctness of the decision. Judicial review concerns the decision-making process; the allegation that the applicants were challenging merits was unconvincing.
Locus of the 2nd ex parte applicant though not a party to the appeal
A person directly affected by a decision may contest it in court; the 2nd applicant, recorded as sole owner of two parcels and co-owner of others, properly joined.
The court held the legal system accommodates non-parties with identifiable stakes to challenge decisions affecting them. Dorothy Mawia Kitangu was recorded as sole owner of parcels 913 and 915 and co-owner of others; she was condemned unheard and fits inclusion.
Validity of Kitui SRMC Land Case No. 20 of 1989 for want of consent under Section 30
The suit predated adjudication of the area, so the consent requirement did not apply; the objection was misplaced.
The respondent argued the 1989 case violated Section 30 of the Land Adjudication Act requiring consent. The court found the suit occurred long before the area came under adjudication (2013), so the complaint was misplaced, and the adjudication process should instead consider the suit's outcome.
Filing a first-instance claim at objection stage
Improper, but the point was not raised below and the court's decision does not turn on it.
The court found the interested party should have lodged his claim at the committee stage and sought the 2nd applicant's recusal under Section 8(1). However, since the point was belated and not raised earlier, it was treated as an afterthought and not the basis of the decision.
Legal principles established
#- A decision that directly affects persons who were not given an opportunity to be heard violates the principles of natural justice and must fall.
- A non-party directly affected by an administrative decision may challenge it in court without having been formally party to the proceedings below.
- An appeal before the Minister must include all parties against whom the underlying claims were lodged; one party cannot carry the burden for the others absent their express agreement.
- A first-instance claim may not be lodged at the objection stage where the prescribed mechanism requires it to be filed at the committee stage.
Court orders
#- 1.An order of certiorari quashing the proceedings and decision of the 2nd respondent in Katse Adjudication Section Appeal to the Minister No. 37 of 2020 over Katse Adjudication Section Parcels Nos 895, 896, 897, 898, 899, 900, 901, 902, 910, 911, 912–926
- 2.Costs awarded to the ex parte applicants
- Jurisdiction invoked
- Sections 7, 9 and 10 of the Fair Administrative Action Act, 2015; Sections 8 and 9 of the Law Reform Act (Cap 26); Section 13 of the Environment & Land Court Act, 2011; Order 53 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 2 others; Kitangu & another (Ex parte) (Judicial Review E001 of 2021) [2026] KEELC 3421 (KLR)", Case Analysis (2026). Judicial Review (ELC, Kitui) – amended Notice of Motion dated 2/11/2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3421/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.