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ELCAllowedJudicial Review application, Notice of Motion dated 8th May 2023 (Homa Bay High Court)

Oyier v Deputy County Commissioner, Suba on behalf of the Minister for Lands & Settlement & another; Ogutu & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2023) [2024] KEELC 1621 (KLR)

High Court of Kenya
13 March 2024
1,812 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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A Kenyan High Court threw out a land adjudication decision because officials missed a 60-day appeal deadline and skipped proper hearing procedures.

What this practically means

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Executive summary

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The Ex parte Applicant, Michael Ogweno Oyier, sought orders of certiorari to quash a decision read by the Deputy County Commissioner for Suba-County (acting for the Minister for Lands and Settlement) on 22nd November 2022 over Land Parcel No. 706 in Kitawa Adjudication Section, and an order of prohibition restraining the District Land Adjudication Officer from implementing that decision, including registering the parcel in the names of the interested parties. The dispute traced back through Civil Suits 12 of 1991 and 254 of 1992 and Land Adjudication Arbitration Board Case 14 of 2011, which had determined the land belonged to the applicant, his brother and mother. The applicant contended the Minister's appeal was filed out of the 60 days prescribed by section 26 of the Land Adjudication Act without leave, and that the 1st respondent unilaterally amended a hearing fixed for 2nd March 2022 and delivered a ruling without a hearing. The respondents and interested parties maintained the applicant participated in the hearing, that the site was visited on 13th May 2022, and that the decision was lawful. The court held that the 1st respondent unprocedurally and unreasonably amended the hearing, that the decision was statute-barred, and that no leave for the late appeal was obtained; the process thus fell below Article 47 and the Fair Administrative Action Act. Lacking jurisdiction, the decision was ultra vires and a nullity. The application was allowed in full - certiorari, prohibition and costs - and delivered at Homa Bay on 13th March 2024.

Questions the Court framed

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

  1. 1.Whether the applicant has established his claim to attract the orders of certiorari and prohibition sought in the application

Key legal issues

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01

Whether the 1st respondent acted ultra vires and without jurisdiction in rendering the decision of 22nd November 2022

Holding

Yes. The 1st respondent unprocedurally and unreasonably amended the hearing fixed for 2nd March 2022, delivered a decision that was statute-barred (the appeal having been filed out of the 60 days prescribed under section 26 of the Land Adjudication Act without leave), and therefore acted ultra vires and without jurisdiction.

Reasoning

The court found the appeal to the Minister was filed out of the 60-day period prescribed by section 26 of the Land Adjudication Act and without leave to file out of time. The hearing fixed for 2nd March 2022 was unprocedurally amended. These failings fell below the Article 47 standard of lawful, reasonable and procedurally fair administrative action, and deprived the 1st respondent of jurisdiction, rendering the decision a nullity liable to be quashed.

p. 4
02

Whether the applicant was accorded procedural fairness under Article 47 and the Fair Administrative Action Act

Holding

No. The respondents failed to accord the applicant the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Reasoning

The court invoked Article 47(1) of the Constitution as operationalized by section 4 of the Fair Administrative Action Act, No. 4 of 2015. It relied on the audi alteram partem rule and the duty of courts and tribunals under Article 159(1) to hear parties. The unilateral amendment of the hearing date and the failure to accord a hearing on the ruling meant the process fell below the constitutional standard of procedurally fair administrative action.

p. 4

Legal principles established

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  • Judicial review is concerned with the legality of the decision-making process, not the merits of the decision.
  • A decision-making body without jurisdiction renders a nullity, and a party who has not been heard is not bound.
  • Lack of jurisdiction renders a decision of a court, tribunal or decision-making body null and void.
  • Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Court orders

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  1. 1.An order of certiorari directed at the Deputy County Commissioner in charge of Suba-County, acting on behalf of the Minister for Lands and Settlement, quashing the decision read to the parties on 22nd November 2022 in respect of Land Parcel No. 706 in Kitawa Adjudication Section
  2. 2.An order of prohibition directed at the District Land Adjudication Officer in charge of Suba Sub-County and Kitawa Adjudication Section, prohibiting implementation of the Deputy County Commissioner's decision of 22nd November 2022, including registering the land in the names of the interested parties
  3. 3.Costs of the application provided for in favour of the applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 23(3)(f) of the Constitution of Kenya, 2010 - orders of judicial review (certiorari and prohibition); leave granted under Order 53 of the Civil Procedure Rules, 2010

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 8th May 2023 is merited. The applicant is deserving of the orders sought in the application. The same is hereby allowed in terms of orders 1, 2 and 3 sought in it as set out in paragraph 1 (a), (b) and (c) hereinabove.
p. 4Final orders - application allowed, certiorari and prohibition granted with costs
It is therefore, the finding of this court that the 1st respondent unprocedurally and unreasonably amended the hearing coming up before him in respect of the dispute on 2nd March 2022.
p. 4Finding on procedural unfairness
The 1st respondent acted ultra vires as he had no jurisdiction to render the impugned judgment in the circumstances.
p. 4Ultra vires and want of jurisdiction
It is trite law that lack of jurisdiction renders a decision of a court or tribunal or a decision making body null and void
p. 4Jurisdictional nullity
Judicial Review is not an appeal from a decision but a review of the decision-making process and the legality of the decision-making process itself.
p. 4Nature of judicial review

Issues in the judgment

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minor

The judgment does not set out its own case number; the case number field had to be derived from the description of the motion and the leave order rather than a stated title.

minor

The respondent's name as drawn in the certiorari order (Deputy County Commissioner acting on behalf of the Minister for Lands and Settlement) is internally inconsistent with the suggestion in paragraph 6 that the Attorney General swore the replying affidavit on his behalf; the judgment does not resolve this.

minor

The judgment states the applicant was not accorded a hearing, while the respondents and interested parties averred he participated; the court does not expressly reconcile this with its finding that the hearing was unprocedurally amended.

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, "Oyier v Deputy County Commissioner, Suba on behalf of the Minister for Lands & Settlement & another; Ogutu & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2023) [2024] KEELC 1621 (KLR)", Case Analysis (2024). Judicial Review application, Notice of Motion dated 8th May 2023 (Homa Bay High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1621/eng@2024-03-13

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