Teresa Kabirithu M’muketha (Representing M’muketha M’thiringi) v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3705 (KLR)
The bottom line
#Kenya's Land Court quashed a land adjudication decision because the officer couldn't prove the required committee was involved in hearing the objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the exparte applicant has locus standi to bring the judicial review proceedings without letters of administration in respect of her deceased husband's land
- 2.Whether the respondent was biased and considered extraneous matters in the objection proceedings
- 3.Whether the objection proceedings in Objection No. 1901 were conducted with the aid of a committee as required under section 26 of the Land Consolidation Act
Key legal issues
#Locus standi of the exparte applicant
The locus issue could not be raised for the first time in submissions as it was an ambush; in any event a successor may claim under Cap 283 without a grant
The interested party raised locus standi only at the submissions stage although absent from its replying affidavit, which the court held violated the right to a fair trial under Article 50(1). On the merits, sections 13(1) and 13(4) of the Land Consolidation Act allow heirs and successors of deceased persons to appear and claim interests without formal grants of representation.
Alleged bias and consideration of extraneous matters
No evidence supported the allegations of bias or consideration of extraneous matters
The court found that parties were given the chance to tender testimony and were cross-examined, and a ground visit to the suit land was undertaken by the respondent and the adjudication committee. Absent evidence of bias, the allegation failed.
Whether the objection was heard with the aid of a committee under section 26 of Cap 283
The motion succeeded on the ground of lack of a committee; nothing in the proceedings showed the committee's composition or participation
Section 26 requires the Adjudication Officer to consider an objection with the Committee. Although the record need not show signatures, the respondent had to demonstrate compliance somehow. The proceedings disclosed nothing about the committee's members or numbers, and the onus of showing compliance lay on the respondent, who failed to discharge it.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- The onus of demonstrating compliance with section 26 of Cap 283 in objection proceedings falls upon the Adjudication Officer
- A claim under the Land Consolidation Act may be brought by successors of a deceased person, not necessarily legal representatives
Court orders
#- 1.An order of Certiorari removing to the court for quashing the Order/Decision made by the Land Adjudication and Settlement Officer Tigania East District on 22nd November 2016 in Objection No. 1901 involving Land Reference No. 4773 Karama Adjudication Section
- 2.The matter remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law
- 3.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under the Law Reform Act in respect of a decision of the Land Adjudication and Settlement Officer under the Land Consolidation Act (Cap 283)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Judicial Review is concerned with the decision making process, not the merits of the decision itself
The onus of demonstrating that there was compliance with the law fell upon the Respondent and not the Ex-parte Applicant
To advance this ground at the stage of submissions is actually an ambush. It is a violation of a right to a fair trial as stipulated under article 50 (1) of the constitution.
An order of Certiorari is hereby issued to remove to this court for the purpose of being quashed the Order/Decision made by the Land Adjudication and settlement Officer Tigania East District on the 22 nd November 2016 in Objection No. 1901 involving Land Reference No. 4773 KARAMA ADJUDICAITON SECTION.
The matter is remitted back to the respondent for the objection proceedings to be conducted all over again in compliance with the applicable law.
As respondent is responsible for the impasse then each party is to bear their own costs of the suit.
Issues in the judgment
#Record mix-up between JR No. 5 and JR No. 6 of 2017: the verifying affidavit and annexures in this case refer to the interested party William Mwenda Gichwili and objection 1901, while this suit concerns objection 1901; the court noted proceedings for objection case No. 1756 were not availed
Judgment date reads 'THIS DAY OF 18th APRIL, 2018' with apparent typographical omission
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresa Kabirithu M’muketha (Representing M’muketha M’thiringi) v Land Adjudication and Settlement Officer Tigania East & another [2018] KEELC 3705 (KLR)", Case Analysis (2018). Judicial Review Case No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3705/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.