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ELCDismissedELC Judicial Review Case No. 1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011)· [2017] KEELC 3722 (KLR)

Republic v District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)

Environment and Land Court of Kenya
1 February 2017
2,573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a church's attempt to reclaim land because it filed its judicial review case over six years late, past Kenya's strict six-month deadline.

What this practically means

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Executive summary

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The Ex-parte Applicant, Chairman of the Management Committee of Orengo Catholic Church, sought certiorari to quash the registration of the 3rd Respondent as proprietor of Siaya/Nyaguda/3655 and the objection proceedings and decision of 12th April 2001, plus prohibition against further objection proceedings. The church claimed it had bought the land before adjudication, was registered as proprietor, but lost it after an objection decided without a fair hearing by a Land Demarcation Officer lacking jurisdiction; a District Adjudication Officer's letter of 5th June 2001 had nullified that decision, yet the Land Registrar registered the 3rd Respondent on 10th November 2010. The 3rd Respondent countered that the church failed to pay the agreed purchase price, the objection was properly heard before the Land Adjudication Officer, and the officer had no power to nullify the proceedings by letter. The court found the objection proceedings were heard by the Land Adjudication Officer (initials 'L.A.O'), that the parties received a fair hearing, and that the Land Adjudication Officer's nullification letter was ultra vires Section 11(b) and void ab initio, the proper remedy being an appeal to the Minister under Section 29. The Land Registrar acted lawfully under Section 28. The court further held the application was statute barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2, the six-month period being incapable of extension, and that proceedings brought under Order 53 could not be recharacterised as fundamental rights enforcement. The notice of motion dated 19th October 2011 was dismissed with costs to the 3rd Respondent.

Key legal issues

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01

Fair hearing in adjudication objection proceedings

Holding

The Applicant was afforded a fair hearing; the church was represented and heard during the objection proceedings

Reasoning

The record of the objection proceedings showed the church was represented by Vitalis Okere Adede who was heard, and this deposition was not challenged. Nothing in the proceedings supported the claim that the church sought and was denied time to present other witnesses. The decision was rendered under Section 26(2) of the Land Adjudication Act.

p. 4
02

Identity of the officer who heard the objection

Holding

The objection proceedings were heard and determined by the Land Adjudication Officer, not the Land Demarcation Officer

Reasoning

The initials 'L.A.O' appearing on the proceedings and decision could only be understood to refer to Land Adjudication Officer, not Land Demarcation Officer. The Applicant produced no documentary evidence proving the proceedings were before a Demarcation Officer, and the District Adjudication Officer's letter did not state otherwise.

p. 4
03

Powers of the Land Adjudication Officer under Section 11(b)

Holding

The Land Adjudication Officer exceeded his powers in purporting to nullify the objection proceedings by letter of 5th June 2001, which was null and void ab initio

Reasoning

Section 11(b) empowers only the correction of errors or supply of omissions in the adjudication register. Disputes over objections under Section 26 are catered for by appeals to the Minister under Section 29. The nullification letter was therefore ultra vires.

p. 4
04

Statutory limitation for judicial review leave

Holding

The notice of motion was statute barred, having been filed more than six months after both the decision of 12th April 2001 and the registration of 10th November 2010

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules require leave applications within six months. The church knew of the decision in May 2001 and of the registration in February 2011, yet the chamber summons for leave was filed on 6th October 2011, outside the period from either date.

p. 5

Legal principles established

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  • The six-month period prescribed by statute for applying for leave to apply for judicial review cannot be extended
  • The power under Section 11(b) of the Land Adjudication Act to correct errors does not extend to nullifying objection proceedings decided under Section 26
  • Where proceedings are brought under Order 53 of the Civil Procedure Rules, they are not founded on alleged violation of fundamental rights under Article 22(1) and 23(2)(f) of the Constitution

Court orders

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  1. 1.The notice of motion dated 19th October 2011 is dismissed
  2. 2.Costs awarded to the 3rd Respondent
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; Law Reform Act (Certiorari and Prohibition)

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 District Land Registrar Bondo & 2 others Ex-parte Chairman, Management Committee of Orengo Catholic Church , Ambrose Dennis Achieng [2017] KEELC 3722 (KLR)", Case Analysis (2017). ELC Judicial Review Case No. 1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3722/eng@2017-02-01

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