Republic v Mbeere South Sub County Deputy County Commissioner & 2 others; Ireri (Interested Party); Murage (Ex parte Applicant) (Environment and Land Case Judicial Review Application 6 of 2019) [2025] KEELC 8541 (KLR)

2. The other grounds are that the parties in the initial suit died and were not been substituted and that the proceedings before the minister were void for being filed out of time. It is also contended thaat the Deputy County Commissioner relied on evidence which was not on record and that he failed to consider the fact that the Interested Party who did not appear before the Adjudication Oficer did not have audience before the appeal forum. The Applicant stated that he would sufier irreparable damage as his father’s land would be taken by the interested parties if the orders sought are not granted. 3. Bernard Kabata Murage swore the afidavit in support of the application. He deponed that his late father Murage Irandu purchased the land known as Mbeere/ Kirima/1168 from Peter Ireri Kiburi in 1973. The Interested Party filed an objection before the Land Adjudication Oficer, Kirima in 1983 claiming ownership of the suit land. The objection was dismissed and the interested parties had a right to appeal within 60 days. He deponed that the Interested Party filed the appeal 30 days after the expiry of the stipulated time. 4. Mr Murage averred that his father died on 31/7/2002 but was not substituted in the proceedings before the Minister. That he was served with a hearing notice for the appeal on 27/3/2019 yet he was not a party to the proceedings. 5. The Applicant reiterated that the Deputy County Commissioner for Mbeere south sub county was acting for the minister of lands and settlement heard the appeal which the Interested Party lodged after the expiry of the prescribed period for appeal. 6. The Interested Party filed a replying afidavit in which he deponed that the Minister’s decision was implemented before the Applicant moved to court. He exhibited copies of green cards showing that the register for parcel no 1168 was closed on 26/7/2019 when the land was subdivided to create parcel numbers 6055 and 6056. He deponed that the suit land ceased to exist after it was subdivided and transferred to third parties and relied on copies of searches for various parcels of land including 7212, 7115, 7053, 6444, 6362, 6361 and 6175. He argued that the Deputy County Commissioner was fair and that he acted within his powers under the law when he made the decision. 7. The Interested Party submitted that the appeal was filed within the statutory period and that he had always been a party in the proceedings. He relied on section 13(5) and 29 (1) of the Land Adjudication Act. 8. The Respondents submitted that the Applicant failed to prove any procedural impropriety and nonobservance of the rules of natural justice in the appeal to the Minister. They urged that both parties were afiorded chances to be heard. They relied on section 29(4) of the Land Adjudication Act on the powers of the minister to delegate the hearing of appeals. They urged that the Applicant failed to demonstrate that the decision making organ who is the 2nd Respondent acted ultra vires in making the impugned decision. They concluded that the Applicant was inviting this court to reverse the Minister’s findings and determine the merits of the decision in the appeal to the Minister case No 423 of 2008. 9. The court has considered the application, the replying afidavit and the submissions made. The issue for determination is whether the ex parte Applicant has made out a case for granting the orders sought. 10. The scope of judicial review was set out in Municipal Council of Mombasa v Republic & Umoja Consultants Limited [2002] KECA 8 (KLR). Judicial review is concerned with the decision-making process and not the merits of the decision itself. What concerns the court is the process that led to the decision being made, whether the person who made it had power and if they took into account irrelevant matters. The court does not sit on appeal over the decision maker. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8541/eng@2025-11-24 2

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11. Minister’s Appeal no. 423 of 2008 resulted from objection proceedings no. 1100/83 filed by the Interested Party claiming ownership of parcel number 1168 Kirima Adjudication Section. The objection was heard and dismissed on 17/5/1989. Parties were given 60 days within which to appeal against that decision to the Minister. The proceedings before the Land Adjudication Oficer annexed to the Applicant’s supporting afidavit show that the decision of the Land Adjudication Oficer was delivered on 17/5/1989. Being aggrieved by that decision, the Interested Party filed an appeal to the Minister whose decision was given on 25/4/2019 in his favour. 12. The Applicant claimed that the proceedings before the Minister were null and void ab initio for being filed out of time. He urged that the Interested Party did not file an appeal until 16/8/1989, which was outside the statutory period of 60 days of filing an appeal to the Minister. 13. The Interested Party denied filing the appeal out of time. In his replying afidavit he produced a certificate of payment for the appeal together with the forwarding note of the appeal from the Land Adjudication Oficer to the Minister. The documents confirm that the Interested Party paid the fees for the appeal on 14/7/1989, which he maintained was when he filed the appeal. 14. In Republic v Ministry of Lands and Settlement & 3 Others Ex parte Kahareri Buri Karugu; Efureith Irima Mugo (Interested Party/Applicant) [2019] KEELC 28 (KLR), the court found that a payment receipt is not deemed to be an appeal within the meaning of section 29 of the Land Adjudication Act. The court observed that Section 29 specified how the appeal to the Minister is to be lodged. The appeal must be in writing and must specify the grounds of appeal. (See also Republic v Deputy County Commisioner, Kilungu Sub-County & 4 others; Sumuni (Exparte Applicant); Muindi & Another (Interested Parties) [2024] KEELC 799 (KLR). 15. From the cases above, it is clear that an appeal is regarded as properly filed only when it meets the requirements of Section 29 (1) of the Land Adjudication Act, in that it must be in writing and specify the grounds of appeal. Section 29 provides that any person aggrieved by the determination of an objection under Section 26 of the Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by firstly, delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and secondly, sending a copy of the appeal to the Director of Land Adjudication. Following these, the Cabinet Secretary is required by law to determine the appeal and make orders he thinks just and the order he makes is final. 16. The Interested Party produced a certificate of payment and a forwarding note. These documents do not on establish that an appeal was filed within the prescribed statutory period. The form setting out the grounds of appeal was endorsed with the Land Adjudication and Settlement Oficer’s oficial stamp on 16/8/1989, which was after the statutory 60 day period prescribed by Section 29(1) of the Land Adjudication Act. The written appeal specifying the grounds of appeal was not lodged within time. Minister’s Appeal No. 423 of 2008 was filed out of time and the Minister acted outside the jurisdiction granted under Section 29(1) of the Adjudication Act when he entertained the appeal. 17. The Applicant contended that the Minister acted illegally because both parties were dead and had not been substituted. He produced the death certificate which showing that his father died on 31/7/2002 while the proceedings before the Minister were conducted on 11/4/2019. The parties in the initial suit were the Applicant’s father, Murage Irandu now dead, as the Respondent and the Interested Party Felisio Ngari Ireri, was the claimant. Both parties were representing their own interests in the suit land. At the time the Minister’s appeal was heard, only Murage Irandu had died. The Interested Party is alive. 18. The court does not agree with the Applicant that there was no substitution since the Interested Party was representing his own interest while the Applicant represented his late father’s interest in the appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8541/eng@2025-11-24 3

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Furthermore, courts have previously held that it is not mandatory for a dead party to be substituted in an adjudication case as it happens in civil proceedings by taking out letters of administration. 19. In Dominic Musei Ikombo v Kyule Makau [2019] KECA 482 (KLR) profiered by the Interested Party. The court stated that proceedings conducted under the Land Adjudication Act are not strictly speaking akin to proceedings under the Civil Procedure Act. That the District commissioner acting on behalf of the Minister had wide latitude to conduct the proceedings in a manner that meets the substantive ends of justice. That Section 13 of the Land Adjudication Act talked of “guardian” or “representative according to African Customary Law” and did not refer to legal representatives. 20. The court added that the strict rules of civil litigation relating to capacity to sue and be sued did not apply to proceedings before the committee or the minister. It was not necessary for a person appearing on behalf of a family or clan where the head of the family or clan had died to possess letters of administration in respect of a dead claimant. 21. The Applicant is the son of the late Murage Irandu. There is no evidence to show that the Applicant was coerced to represent his father’s interest in the appeal before the Minister as he has alleged. The parties in the appeal were properly represented in the proceedings before the Minister. 22. The Applicant contended that the Minister relied on evidence which was not on record or placed before the Land Adjudication Oficer. This was also answered in the Dominic Musei Ikombo case, where the court stated that the Land Adjudication Act gives the Minister a wide latitude to deal with the proceedings in a manner that meets the substantive ends of justice, and that he was not limited to the evidence placed before the Land Adjudication Oficer. 23. The court finds that the Applicant has made out a case for judicial review to the extent that the appeal before the Minister was filed out of time. An order of certiorari is issued to quash the Minister’s decision dated 25/4/2019 in Appeal Case No. 423 of 2008 regarding land parcel no. 1168 Kirima Adjudication Section. The Applicant shall have costs of the application. DELIVERED VIRTUALLY AT EMBU THIS 24TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Ms. Wangechi Kimata for the Applicant Diana Kemboi- Court Assistant No appearance for the other parties https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8541/eng@2025-11-24 4

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