[2011] KEHC 1360 (KLR)
The court found that the process used by the Adjudication Officer was void ab initio due to failure to serve notice of the decision date on the deceased, the decision being delivered against a deceased party, and the objection being heard in the absence of the deceased. The applicants, as legal representatives,...
Source-derived case information.
- Citation
- [2011] KEHC 1360 (KLR)
- Parties
- Applicant: James Marete Thuranira; Applicant: Andrew Miriti Thuranira; Respondent: Attorney General (for and on behalf of the District Land Adjudication and Settlement Officer, Tigania West/East District and another)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 100 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- Application allowed. Leave granted to file suit out of time as per prayer 1 of the ex-parte Originating Summons dated 20th July 2011.
- Judges
- AM Cockar
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Land Adjudication, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Marete Thuranira
Applicant
Andrew Miriti Thuranira
Applicant
Attorney General (for and on behalf of the District Land Adjudication and Settlement Officer, Tigania West/East District and another)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants, as legal representatives of the deceased, should be granted leave to file suit out of time against the government authorities regarding land adjudication.
- 2 Whether the process used by the Adjudication Officer was void for breach of natural justice.
Ratio Decidendi
The court found that the process used by the Adjudication Officer was void ab initio due to failure to serve notice of the decision date on the deceased, the decision being delivered against a deceased party, and the objection being heard in the absence of the deceased. The applicants, as legal representatives, could not be blamed for the delay in filing suit. The breach of the rules of natural justice rendered the adjudication process null and void, justifying the grant of leave to file suit out of time.
Court Disposition
Application allowed. Leave granted to file suit out of time as per prayer 1 of the ex-parte Originating Summons dated 20th July 2011.
Orders
- Leave is granted to the applicants to file suit out of time against the Attorney General and relevant government officers in respect of Land Parcel No. 1514, Athiga Athaiya Adjudication Section.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HC MISC APP. NO. 100 of 2011
LESIIT, J
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT
CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT
CAP 40 LAWS OF KENYA
AND
IN THE MATTER OF THE PUBLIC AUTHORITIES LIMITATIONS ACT
CAP 39 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO FILE SUIT OUT OF TIME
VERSUS
JAMES MARETE THURANIRA &
ANDREW MIRITI THURANIRA
As legal Representatives of the Estate of
M’THURANIRA KIRERU – DECEASED…………...……….APPLICANTS
R U L I N G
This is an ex-parte Originating Summons brought under the Limitation of Actions Act Cap 22, Government Proceedings Act Cap 39 and Public Authorities Act Cap 39. It is dated 20th July 2011. The application seeks leave as legal representatives of the deceased named to be granted to the Applicants to file a suit out of time against the Attorney General, for and on behalf of the District Land Adjudication and Settlement Officer, Tigania West/East District and another for various reliefs, declarations and orders in respect of Land Parcel No. 1514 situated within Athiga Athaiya Adjudication Section belonging to the deceased.
The grounds for the application are cited on the face of the application and in the supporting affidavit sworn by the applicants and annextures thereto.
I considered submissions by Mr. Nyamu Nyaga, counsel for the Applicants. In brief counsel for the applicants were aggrieved by a decision made by the Adjudication Officer made two years after the officer conceded the matter, without notice, and in which the deceased was dispossessed of his land.
I have carefully considered the application, affidavits and annexutres in support and submissions by counsel. I am satisfied that the applicants have demonstrated that the process used by the government officer was void ab-initio. First for reason that no notice of date the decision on the objection was to be delivered was served on the deceased.
The applicants who are the legal representatives of the deceased cannot be blamed for delay in filing the suit second the decision was delivered against a deceased party.
Thirdly and most important the objection in question was heard in the absence of the deceased, and at a time he was already deceased. Prima facie the process applied by the Adjudication Officer was null and void for breach of the rules of natural justice.
I do find merit in this application. Accordingly I grant leave sought in terms of prayer 1 of the ex-parte Originating Summons dated 20th July 2011.
Dated, signed and delivered this 28th day of July 2011.
LESIIT, J
JUDGE