Teresa Kabirithu M’muketha v Teresa Kabirithu M’muketha & another [2018] KEELC 3751 (KLR)
The bottom line
#A Kenyan court quashed a land adjudication decision because the officer failed to involve the required local committee, and heirs can challenge such decisions without letters of administration.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the ex-parte applicant as widow without letters of administration
The objection raised at submissions stage was an ambush violating fair trial rights, and in any event the Land Consolidation Act allows successors to claim without being legal representatives.
The interested party raised locus only in submissions, not in the replying affidavit, which the court treated as an ambush contrary to Article 50(1) of the Constitution. On the merits, sections 13(1) and 13(4) of Cap 283 permit persons claiming rights or interests, including heirs and successors of deceased persons, to appear and be heard, so the absence of a grant of letters of administration was not fatal.
Whether the objection proceedings were conducted with the aid of a committee as required by section 26 of Cap 283
The motion succeeded on the ground of lack of a committee; the respondent failed to demonstrate compliance.
Section 26 requires the Adjudication Officer to consider an objection with the committee. The record did not disclose the composition, number or participation of committee members, and compliance must be discernible from the proceedings. Since the onus of showing compliance lay on the respondent, the absence of any such information meant the statutory requirement was breached.
Allegations of bias and consideration of extraneous matters
No evidence supported the allegations of bias; parties testified, were cross-examined and a ground visit was conducted.
The court examined the objection proceedings and found that all parties including the ex-parte applicant were present, gave testimony, were cross-examined, and that a ground visit to the suit land took place. The court could not act as an appellate body over the merits, and found nothing in the process to sustain the bias or extraneous-matters allegations.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision.
- The onus of demonstrating compliance with the law in objection proceedings falls upon the Adjudication Officer.
- A claim under the Land Consolidation Act may be made by successors of a deceased person, not necessarily legal representatives.
Court orders
#- 1.An order of Certiorari to remove and quash the decision of the Land Adjudication and Settlement Officer Tigania East District made on 22 November 2016 in Objection No. 1756 involving Land Reference No. 4773 Karama Adjudication Section
- 2.The matter remitted back to the respondent for the objection proceedings to be conducted afresh in compliance with the applicable law
- 3.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Judicial review jurisdiction under order 53 (Leave granted on 3.2.2017) in respect of a decision under the Land Consolidation Act (Cap 283)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teresa Kabirithu M’muketha v Teresa Kabirithu M’muketha & another [2018] KEELC 3751 (KLR)", Case Analysis (2018). Judicial Review Case No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3751/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.