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ELCPartially AllowedJudicial Review Application No. 32 of 2015 (formerly Kerugoya ELC JR. No. 3 of 2013)

Republic v Ministry of Lands and Settlement & 3 others Ex parte Kahareri Buri Karugu; Efureith Irima Mugo (Interested Party/Applicant) [2019] KEELC 28 (KLR)

Environment and Land Court of Kenya
19 December 2019
YAY.M. Angima
1,487 words in judgment
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The bottom line

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Kenya's Environment and Land Court quashed a Minister's land appeal decision because the appeal was filed years past the 60-day legal deadline.

What this practically means

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Executive summary

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This was a judicial review application by notice of motion dated 3rd October 2012, brought under Order 53 Rule 3 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, in which the ex-parte Applicant sought certiorari to quash the decisions of the Minister and the District Commissioner, Mbeere North, in Minister's Appeal Case Nos. 206/99 and 228/04, Kirima Adjudication Section, both dated 20th December 2012. The Applicant contended that the 3rd and 4th Respondents' appeals were filed 15 and 17 years after the Land Adjudication Officer's decisions, far outside the 60-day period in section 29 of the Land Adjudication Act, and that the 2nd Respondent relied on inconsistent evidence. The 1st and 2nd Respondents conceded the application, admitting the appeals were ultra vires. An earlier judgment of 17.01.2019 allowing the application was set aside following the joinder of the Interested Party, and the matter was heard de novo. The court framed a single issue: whether Appeal Case No. 206 of 1999 was filed within the statutory 60 days. It held that section 29 requires an appeal in writing specifying grounds; payment of tracing and appeal fees on 18.09.1989 did not constitute filing, and the appeals register entries contravened the statute. The proper appeal was lodged on 5.04.1999 and was statute-barred, so the Minister had no jurisdiction. The court allowed the application in part, issuing certiorari quashing the decision in Appeal Case No. 206 of 1999 only, since Appeal No. 228 of 2004 had been dismissed by the Minister. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not Appeal Case No. 206 of 1999 was filed within or outside the statutory period of 60 days

Key legal issues

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01

Whether Appeal Case No. 206 of 1999 was lodged within the 60-day statutory period under section 29 of the Land Adjudication Act

Holding

The appeal was filed on 5.04.1999, outside the 60-day period, and was therefore statute-barred; the Minister had no jurisdiction to entertain it.

Reasoning

Section 29(1) prescribes the manner of lodging an appeal: delivery to the Minister of an appeal in writing specifying the grounds, within sixty days. The certificate of payment of tracing and appeal fees dated 18.09.1989 and the appeals register entry did not amount to an appeal in writing with grounds. A proper appeal enumerating six grounds was only lodged on 5.04.1999, well outside the statutory period, so the Minister's decision was ultra vires and liable to be quashed.

p. 2

Legal principles established

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  • An appeal to the Minister under section 29 of the Land Adjudication Act must be in writing specifying the grounds of appeal; payment of tracing and appeal fees does not constitute filing of an appeal

Court orders

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  1. 1.An order of Certiorari issued to remove into the court and quash the proceedings and decision of the Minister in Minister's Appeal Case No. 206 of 1999 dated 20th December 2012
  2. 2.Each party shall bear his own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YA
majority

Wrote the judgment

Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act (Cap 26)

Relief refused

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Certiorari in respect of Minister's Appeal Case No. 228 of 2004

The court found no issue arose because that appeal was dismissed by the Minister anyway

p. 2

Costs

Each party shall bear his own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal must be in writing and must specify the grounds of appeal. Neither the certificate of payment of appeal and tracing fees nor receipt No. AL 641922 dated 18.09.1989 indicates any grounds of appeal within the intendment of the law.
p. 2Manner of lodging an appeal under section 29 of the Land Adjudication Act
The upshot of the foregoing is that despite the Interested Party having joined the proceedings and tendered some evidence on the appeal in question, the court still finds that the appeal was filed out of time. The appeal was statute-barred hence the Minister had no jurisdiction to entertain it.
p. 2Statute-barred appeal; lack of jurisdiction
An order of Certiorari be and is hereby issued to remove into this court and quash the proceedings and decision of the Minister in Minister’s Appeal Case No. 206 of 1999 dated 20th December 2012.
p. 2Final orders - certiorari

Issues in the judgment

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minor

The replying affidavit of the 4th Respondent is dated 30th May 2012, yet the notice of motion it responds to is dated 3rd October 2012; the affidavit pre-dates the application.

minor

The judgment states the application was dated 3rd October 2012 but the grounds reference appeals dated 20th December 2012, a date later than the application itself.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Ministry of Lands and Settlement & 3 others Ex parte Kahareri Buri Karugu; Efureith Irima Mugo (Interested Party/Applicant) [2019] KEELC 28 (KLR)", Case Analysis (2019). Judicial Review Application No. 32 of 2015 (formerly Kerugoya ELC JR. No. 3 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/28/eng@2019-12-19

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