Kojo v Atwanga & 4 others

appeal decision rendered by a Deputy County Commissioner. The core issues—reviving a dead matter decades after a statutory limitation has lapsed, conferring absolute title upon a deceased person, destroying property (beehives and eucalyptus trees), and riding roughshod over constitutional rights to property and fair hearing—strike at the heart of constitutionalism and administrative justice 2. By a Notice of Motion and a substantive Constitutional Petition dated and led on February 25, 2025, the Petitioner, Alfonce Gunga Kojo, an elderly and ailing resident of Ndhiwa Sub-County, approaches this Court seeking constitutional vindication. He challenges the administrative decision rendered by the 2nd Respondent on December 29, 2023, which purported to award Land Parcel No. 1778, Kasirime Adjudication Section (measuring approx. 3.63 Hectares) to a dead person, namely Aloice Mark Atwanga. 3. The Petitioner maintains that he has been in peaceful, continuous, and productive occupation of the suit land since inheriting it from his late father, Kojo Okinyi, in 1953. Having successfully defended his proprietary footprint through successive community-level committees and securing a denitive ruling in his favor from the District Land Adjudication Ocer on August 24, 2001, the Petitioner enjoyed uninterrupted quiet possession for over two decades. 4. This relative peace was violently disrupted in November 2023 when he was slapped with a hurried summons requiring his attendance on the very day of hearing, culminating in an irrational administrative appeal decision that ignored statutory bars, disregarded historical usage, and attempted to register land in the name of a deceased individual. II. Summary Of Pleadings, Submissions, And Issues A. B. The Petitioner's Case & Submissions (M/s Ogwe & Associates Advocates) a. The Pleadings: The petitioner led a Constitutional Petition under Articles 40, 50, 47, and 162(2)(b) of the Constitution of Kenya, alongside supporting adavits detailing his continuous occupation since 1953 and his 2001 adjudication success. He presented photographic evidence of destroyed beehives and a Kenya Forest Service assessment report valuing unlawfully felled eucalyptus and acacia trees at KES 99,000, alongside agricultural damage assessed at KES 150,000. b. Core Submissions:i. No valid Memorandum of Appeal or grounds of appeal were ever led or served within statutory windows.ii. The alleged appellant, Aloice Mark Atwanga, died in 2014, and no substitution or grant of representation was ever undertaken before the appeal was heard and determined.iii. The proceedings violated natural justice and Articles 47 and 50 of the Constitution, constituting an abuse of administrative power. The 2nd, 3rd, 4th, and 5th Respondents’ Position (State Law Oce) i. Replying Papers & Grounds of Opposition: Filed through Senior Litigation Counsel Sarah Jumma, contending that the petition is a civil claim camouaged in constitutional attire to bypass Section 30 of the Land Adjudication Act. ii. Legal Submissions:a. The court lacks jurisdiction because the petitioner failed to obtain written consent from the Land Adjudication Ocer pursuant to Section 30(1) of the Land Adjudication Act (Cap 284) prior to instituting proceedings.b. Relying on Musana Ole Pere v District Land Adjudication Ocer and Muli v Cabinet Secretary for Lands, the State argued that a mere challenge to a Minister's/DCC's decision does not automatically elevate a dispute into a constitutional petition.c. The 2nd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25 2

page 2 of 6

Respondent acted lawfully pursuant to delegated powers under Section 29(4) of the Land Adjudication Act, and the petitioner was accorded a fair hearing. C. D. The 1st Respondent’s Position (M/s M.C. Adingo & Associates Advocates) i. Replying Papers: Filed by the 1st Respondent, supported by adavits from Moses Opiyo Okiko and Johanas Amolo Ombumba, asserting that the suit land historically belonged to the Atwanga family, separated by River Nyakwamba. ii. Legal Submissions:a. Re-echoed jurisdictional objections under Section 30(1) of the Land Adjudication Act and invoked the doctrine of constitutional avoidance (Ngotho v Permanent Secretary of Ministry of Education), arguing that private property disputes should be resolved through standard civil avenues rather than constitutional petitions.b. Argued that time-honored administrative bodies are masters of their own procedures (KRA v Murgani) and that the appellant was duly notied via historical warning letters (e.g., letter dated January 19, 2007). Framed Issues for Determination a. Whether this Court has the requisite jurisdiction to entertain the Petition in light of Section 30 of the Land Adjudication Act, the doctrine of exhaustion, and the legal tenability of the State's arguments. b. Whether the 2nd Respondent violated the rules of natural justice and Article 50/47 by hearing an appeal without proper grounds, short-circuiting notice, and proceeding in the absence of a legal representative for a deceased appellant. c. Whether a quasi-judicial administrative body can lawfully confer absolute title and register land in the name of a deceased person (Aloice Mark Atwanga), and how the Land Adjudication Act interacts with the Law of Succession Act (Cap 160). d. Whether the 2nd Respondent had jurisdictional competence to overturn a settled adjudication objection ruling delivered on August 24, 2001, over 22 years prior. e. Whether the Petitioner is entitled to the constitutional reliefs sought and who should bear the costs. III. Analysis And Determination By The Court 5. Having carefully evaluated the pleadings, adavits, annexures, statutory frameworks, and rival written submissions, this Court makes its determinations structured around the core legal and jurisdictional questions. A. On Jurisdiction, Section 30 of the Land Adjudication Act, and the Untenability of State Arguments 6. The Respondents have vigorously raised a preliminary objection anchored on Section 30(1) of the Land Adjudication Act, which dictates that except with the written consent of the adjudication ocer, no court shall entertain civil proceedings concerning an interest in land in an adjudication section until the register is nalized. They further cited Court of Appeal precedents. 7. This Court nds that the arguments advanced by the State and Respondents are entirely untenable. From a constitutional and statutory standpoint, their positions collapse under several fatal legal aws: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25 3

page 3 of 6

a. Violation of Statutory Timelines and Finality: Under the Land Adjudication Act, administrative and quasi-judicial determinations—such as objection rulings by Adjudication Ocers—are designed to bring nality to land rights. Attempting to resurrect a stale dispute and overturn a settled decision after more than two decades, without a validly prosecuted appeal within statutory time limits, lacks any jurisdictional competence. b. Exhaustion & Supervisory Jurisdiction: Where administrative bodies act ultra vires, violate mandatory constitutional safeguards under Articles 40 and 50, and perpetrate legal absurdities, the High Court and ELC retain inherent constitutional supervisory jurisdiction under Articles 22, 23, and 165 of the Constitution. Section 30 of the Land Adjudication Act cannot be used as a shield or a sanctuary to sanitize patent administrative illegality, procedural ambush, and nullities. Accordingly, this Court holds that it has full jurisdiction to interrogate the constitutionality of the administrative process deployed by the 2nd Respondent. B. On Whether the Impugned Decision Violated Fair Hearing (Articles 47 and 50) 8. The record lays bare an egregious breach of natural justice. The 2nd Respondent issued a summons dated November 10, 2023, commanding the elderly petitioner to appear on November 16, 2023. No substantive memorandum or grounds of appeal from the 2001 ruling were ever legally led or served upon the petitioner within a reasonable statutory window. 9. As held in the Kenyan locus classicus Kiatuny v Land Adjudication Ocer [1987] KLR 249, administrative tribunals acting quasi-judicially are strictly bound to observe the rules of natural justice. A hearing conducted by ambush—where an octogenarian is summoned on short notice without particulars or valid grounds of appeal—is a structural nullity. Under Article 50 of the Constitution, the right to a fair hearing is non-negotiable. C. On the Legal Absurdity of Conferring Land to a Deceased Person: Interaction Between the Land Adjudication Act and the Law of Succession Act 10. The most striking feature of the 2nd Respondent's ruling of December 29, 2023, is its operative conclusion: "Parcel No. 1778 to be registered in the name of Aloice Mark Atwanga"—notwithstanding the undisputed fact that Aloice Mark Atwanga died in 2014, long before the hearing and determination. 11. Addressing the legal interplay between the Land Adjudication Act (Cap 284) and the Law of Succession Act (Cap 160): a. Application of the Law of Succession Act (LSA): The LSA is not excluded from land adjudication processes; rather, it applies universally to all estates and transmissions of property upon death under Kenyan law. While the Land Adjudication Act governs the investigation, recording, and initial determination of existing rights and interests in land (typically among living persons), it does not displace or override the mandatory provisions of the LSA when a party or claimant passes away. b. Requirement of Personal Representation: Once an interest or right is established under land adjudication, its transmission, devolution, or representation upon the death of that holder must strictly adhere to the succession framework requiring a personal representative appointed via a grant of representation (Sections 2 and 79 of the LSA). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25 4

page 4 of 6

c. 12. Legal Impossibility: A land adjudication or administrative quasi-judicial process cannot bypass the LSA to vest or award title directly to a deceased person. A deceased person lacks legal capacity to acquire, hold, or be registered as an absolute proprietor of land. As reinforced in In re Estate of John Karani Keberenge (Deceased) [2018] eKLR and Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR, a party lacking a grant of representation or letters of administration has no legal capacity to prosecute or be joined in legal proceedings. An administrative decision that vests title in a corpse is legally dead on arrival, irrational, and ultra vires. Public power must be exercised rationally (Fedsure Life Assurance). Awarding land to a deceased individual outside the formal framework of succession and personal representation displays an administrative caprice that shocks the judicial conscience. D. On the Finality of Adjudication and Protection of Property (Article 40) 13. The record conrms that the 3rd Respondent delivered a comprehensive ruling on August 24, 2001, settling the objection in favor of the petitioner after analyzing active land utilization, including historical blue gum trees planted by the petitioner as early as 1947. Over 22 years lapsed without a competent, prosecuted appeal. 14. To resurrect a stale dispute two decades later, bypass established settlement patterns, and dispossess an octogenarian who has cultivated the land for over 70 years is a direct violation of Article 40 of the Constitution, which protects the right to acquire and own property. Furthermore, using an irregular administrative process to facilitate the destruction of economic investments—such as the petitioner's beehives and the illegal felling of mature eucalyptus and acacia trees (valued by the Kenya Forest Service at KES 99,000 and agricultural ocers at KES 150,000)—constitutes an arbitrary and unconstitutional deprivation of property. IV. Disposition And Orders 15. Accordingly, for the reasons set out above, this Court nds that the Petition is overwhelmingly merited. Judgment is hereby entered for the Petitioner against the Respondents jointly and severally in the following terms: a. Declaration: A Declaration is hereby issued that the Petitioner, Alfonce Gunga Kojo, is the absolute, legal, and benecial owner of Land Parcel No. 1778, measuring approximately 3.63 Hectares in Kasirime Adjudication Section within South Nyanza, Homa Bay County. b. Declaration: A Declaration is hereby issued that the Respondents jointly and severally violated the Petitioner's fundamental constitutional rights to a fair hearing under Article 50 and the right to property under Article 40 of the Constitution of Kenya, 2010. c. Certiorari / Quashing Order: An Order of Certiorari is hereby issued bringing into this Court and quashing entirely the decision/ruling of the 2nd Respondent (Deputy County Commissioner, Ndhiwa Sub-County) delivered on December 29, 2023, purporting to confer rights or register Land Parcel No. 1778 in the name of the deceased Aloice Mark Atwanga. d. Cancellation / Rectication: An Order is hereby issued directing the 4th Respondent (Land Registrar, Homa Bay County) to cancel, nullify, or desist from eecting any entries, registrations, or title issuances arising from or connected to the quashed decision of December 29, 2023, ensuring the register remains intact in favor of the Petitioner. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25 5

page 5 of 6

e. Permanent Injunction: A Permanent Injunction is hereby issued restraining the 1st Respondent, whether by himself, his agents, servants, or employees, from entering, leasing, cultivating, cutting trees, demolishing beehives, or in any other manner interfering with the Petitioner’s quiet possession and ownership of Land Parcel No. 1778, Kasirime Adjudication Section. f. Costs: The costs of this Petition and the preceding application shall be borne by the 1st and 2nd Respondents jointly and severally. DATED, DELIVERED VIRTUALLY AND SIGNED AT HOMA BAY THIS 25TH DAY OF SEPTEMBER, 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the Presence of: Adengo for the 1st Respondent - Present Ogwe for the Petitioner Attorney General for the 5th Respondent (AG) Court Assistant: Ms. Awino https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6164/eng@2026-09-25 6

page 6 of 6