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ELRCDismissedJudicial Review Motion filed 16.3.2017 (Meru)· [2018] KEELRC 1045 (KLR)

Rose Kanini M’atheru & another v District Land Adjudication & Settlement, Karama Adjudication Section & 2 others [2018] KEELRC 1045 (KLR)

Environment and Land Court
26 September 2018
LMLUCY N MBUGUA
1,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed land adjudication officers can decide disputes involving deceased owners' land during adjudication, without succession proceedings.

What this practically means

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Executive summary

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The exparte applicant sought an order of certiorari to quash the District Land Adjudication & Settlement Officer's decisions dated 22.11.2016 in five objections in the Tigania East Adjudication Area, Karama Adjudication Section. The applicant contended the parcels were registered in the name of Katheru Kaurugo, who died on 16.10.2012, and that the officer acted ultra vires by purporting to distribute a deceased person's estate, contrary to section 2 of the Law of Succession Act. The Attorney General filed grounds of opposition contending the suit offended the Land Consolidation Act; the interested parties entered appearance but filed nothing. Only the applicant filed submissions, relying on the AIG Insurance case on certiorari for excess of jurisdiction. The court, applying the Land Consolidation Act, held that its purpose is ascertainment of rights and interests in land in special areas, that section 13(4) contemplates heirs of a deceased person appearing, and that section 26 allows any person aggrieved by the Adjudication Register to object. Following its own earlier decision in the Tarasila Nyoroka case and the Tobias Achola Osidi decision, the court held that claims can be made by successors of a deceased person and against them, since rights remain in the realm of ascertainment until the Adjudication Register is complete. Section 2 of the Law of Succession Act was inapplicable. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the DLASO acted ultra vires in determining disputes concerning a deceased person's land during adjudication

Holding

The DLASO had jurisdiction; the Land Consolidation Act permits any person claiming an interest in land, including successors of a deceased person, to participate in adjudication and objection proceedings

Reasoning

The court found that before completion of the Adjudication Register, rights and interests remain in the realm of ascertainment under native law and customs, a process governed by the Land Consolidation Act. Section 13(4) contemplates appearances by heirs of a deceased person, and section 26 allows any person aggrieved to object. Hence section 2 of the Law of Succession Act is inapplicable at this stage.

p. 2

Legal principles established

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  • The Law of Succession Act does not apply to ascertainment of rights and interests in land during the adjudication process under the Land Consolidation Act
  • A land adjudication officer has jurisdiction to entertain objections involving successors of a deceased person before completion of the Adjudication Register

Court orders

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  1. 1.The suit was dismissed with no orders as to costs

Authorities

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Legislation

  • Land Consolidation ActPreamble; sections 13(1), 13(4), 26
  • Law of Succession Actsection 2
  • Land Adjudication Act (Cap. 284)section 13

Cases cited (3)

  • Republic versus Milimani, Commercial Court Chief Magistrate & another, ex parte AIG Insurance Co. Ltd
    (2010) eKLR
  • Republic vs Attorney General & 3 others and Tarasila Nyoroka & another as exparte applicants (Misc. Judicial Review No. 19/2015 Meru)
  • Tobias Achola Osidi & 13 others vs Cypriano Otieno Ogola & others
    H.C.C.C No. 4 of 204 Kisii
Jurisdiction invoked
Judicial review jurisdiction over a District Land Adjudication & Settlement Officer's decision under the Land Consolidation Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rose Kanini M’atheru & another v District Land Adjudication & Settlement, Karama Adjudication Section & 2 others [2018] KEELRC 1045 (KLR)", Case Analysis (2018). Judicial Review Motion filed 16.3.2017 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1045/eng@2018-09-26

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