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ELCDismissedJudicial Review 3 of 2022

Republic v Homa Bay Land Registrar & 2 others; Odhiambo & another (Exparte); Odhiambo (Interested Party)

Environment and Land Court of Kenya
24 October 2023
1,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family's bid to remove a step-son's name from family land, ruling the 1993 land adjudication was lawful and the claim came far too late.

What this practically means

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Executive summary

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The ex parte applicants, acting in person, sought judicial review orders by notice of motion dated March 1, 2023: certiorari to quash the entire proceedings in Mbita Resident Magistrate's Civil Case No. 6 of 2016, including the ruling of January 25, 2022, and mandamus directed at the Homa Bay Land Registrar and the Land Adjudication Officer to expunge the name of Tom Kwala Odhiambo (the interested party and step-son of the 1st ex parte applicant) from land parcel Lambwe West B/878. The applicants complained that the Land Adjudication Officer included Tom Kwala as co-owner without reasons and without observing natural justice. Despite service, no responses were filed. The court, GMA Ongondo J, noted that the adjudication record of June 28, 1993 showed that objection no. 660, lodged by the 1st ex parte applicant herself, was allowed, and the proceedings bearing her thumbprint recorded her own request that the suit land be transferred to Tom Kwala. The court held that the Land Adjudication Officer accorded her an opportunity to be heard and reduced the decision in writing, satisfying article 47 of the Constitution and section 4 of the Fair Administrative Action Act, so her right to fair administrative action was not contravened. Certiorari against the magistrate's court proceedings was refused because the applicants produced no records supporting their assertion that the suit was dismissed for non-attendance. Further, applying section 7 of the Limitation of Actions Act, the cause of action arose in 1993 while the application was filed in 2022, well beyond twelve years, rendering the claim time-barred. The application was found incompetent and unmeritorious and dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the applicants established a case for the grant of orders of certiorari and mandamus sought
  2. 2.Whether the Land Adjudication Officer followed due process and accorded fair administrative action in including Tom Kwala Odhiambo as co-owner of the suit land
  3. 3.Whether an order of certiorari was available to quash the Mbita Resident Magistrate's Court Civil Case No. 6 of 2016 proceedings
  4. 4.Whether the claim was time-barred under the Limitation of Actions Act

Key legal issues

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01

Whether the Land Adjudication Officer violated the right to fair administrative action

Holding

No violation; the officer accorded the 1st ex parte applicant an opportunity to be heard and reduced the decision in writing

Reasoning

The adjudication record of June 28, 1993 showed objection no. 660 lodged by the 1st ex parte applicant herself was allowed, and the proceedings bearing her thumbprint showed she requested transfer of the suit land to Tom Kwala Odhiambo. The officer thus heard her before granting her request and gave written reasons, satisfying article 47 and section 4 of the Fair Administrative Action Act.

02

Whether certiorari was available against the magistrate's court proceedings

Holding

Certiorari not available; no records were availed to support the assertion that the suit was dismissed for non-attendance

Reasoning

The applicants contended that Mbita RM Civil Case No. 6 of 2016 was dismissed for non-attendance rather than heard to conclusion, but produced no records to substantiate this. Without evidence of the proceedings or decision sought to be quashed, the judicial review remedy of certiorari could not issue.

p. 3
03

Whether the claim was time-barred

Holding

Yes; the cause of action arose in 1993 and the application was filed in 2022, beyond the twelve-year limitation period

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right of action. The decision complained of was made on June 28, 1993, yet the application was lodged in 2022, far outside the limitation window, rendering the claim incompetent.

p. 4

Legal principles established

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  • Judicial review concerns the legality of the decision-making process, not the merits of the decision
  • An action to recover land may not be brought after twelve years from when the right of action accrued
  • Courts and tribunals have a duty to hear parties before them, upholding the audi alteram partem rule

Court orders

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  1. 1.The notice of motion application dated March 1, 2023 be and is hereby dismissed with no orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 53 rule 1 of the Civil Procedure Rules, 2010; judicial review also entrenched in the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015

Relief refused

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Order of certiorari to quash Mbita RM Civil Case No. 6 of 2016 proceedings, the ruling dated January 25, 2022 and subsequent processes

Applicants did not avail any records to support their assertion that the suit was dismissed for non-attendance

p. 3

Orders of mandamus to expunge the name of Tom Kwala Odhiambo from land parcel Lambwe West B878

The Land Adjudication Officer followed due process; the 1st ex parte applicant herself requested the inclusion; claim also time-barred

Costs

Dismissed with no orders as to 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.

Wherefore, the application dated March 1, 2023 and lodged herein on even date, be and is hereby dismissed with no orders as to costs.
p. 4Final orders - dismissal
In the foregone, it is the finding of this court that the application is incompetent and unmeritorious.
Overall finding
The cause of action arose in the 1993 yet the instant application was filed in 2022. Clearly, the period of twelve years had lapsed. Therefore, the instant claim is time-barred.
p. 4Limitation of actions
It is therefore, this court's considered view that the Land Adjudication Officer followed due process in arriving at the said decision.
p. 4Fair administrative action

Issues in the judgment

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minor

Judgment refers to 'Land Registration Act, 2016 (2012)' - inconsistent year designation

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 Homa Bay Land Registrar & 2 others; Odhiambo & another (Exparte); Odhiambo (Interested Party)", Case Analysis (2023). Judicial Review 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20920/eng@2023-10-24

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