https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5340

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELCL JR APPLICATION NO. E021 OF 2025** **REPUBLIC …………………………..……………………….. APPLICANT** **=VERSUS=** **DEPUTY COUNTY COMMISSIONER** **TIGANIA CENTRAL ………………………..……….1ST RESPONDENT** **DISTRICT LAND AND SETTLEMENT** **OFFICER, TIGANIA CENTRAL/EAST ……..… 2NDRESPONDENT** **THE HON. ATTORNEY GENERAL ……………. 3RD RESPONDENT** **BERNARD BAARIU …………………….….1ST INTERESTED PARTY** **DANIEL KIUNYE …………………………….. EXPARTE APPLICANT** **JUDGMENT** **Background** 1. On or about 5/12/2025, **Daniel Kiunye** [*the ex-parte applicant*] brought a chamber summons dated **04/12/2025** seeking leave of the court to initiate judicial review proceedings in pursuit of an order of certiorari quashing the proceedings and the decision of the Cabinet Secretary [*hereinafter referred to as* ***“the Minister”***] rendered on **17/07/2025** in **Appeal Case No. 202 of 2024** relating to land **parcel number** **7587** within **Giithu Adjudication Section**. Upon considering the application ex-parte, this court granted the ex-parte applicant leave. 2. Subsequent to that, the ex-parte applicant brought a notice of motion dated 10/12/2025 under **Article 47** of the **Constitution,** **Sections 8** and **9** of the **Law Reform Act** and **Order 53 rule 1 (1)** and **2**of the **Civil Procedure Rules**, seeking the following verbatim reliefs: 3. ***That an order for certiorari be issued to bring to this court and quash the proceedings and the decision delivered on 17/07/2025 being Appeal to the Minister No. 202 of 2024 over land parcel No. 7587 Giithu Adjudication Section.*** 4. ***That the costs of the application be in the main motion.*** 5. The above motion is what falls for determination in this Judgment. The single issue to be determined in the Judgment is whether a proper case has been made to warrant grant of an order of certiorari quashing the impugned proceedings and the impugned decision of the Minister. Before I analyse and dispose the issue, I will briefly outline the parties’ respective cases. **Ex-parte Applicant’s Case** 1. The case of the ex-parte applicant is contained in: (i) the notice of motion dated 10/12/2025; (ii) the statutory statement of facts dated 04/12/2025; (iii) the ex-parte applicant’s affidavit verifying facts, dated 04/12/2025; (iv) the ex-parte applicant’s supplementary affidavit dated 06/02/2026; and (v) the ex-parte applicant’s written submissions dated 5/02/2026, filed by ***M/s Joshua Mwiti Law Advocates***. 2. In summary, the case of the ex-parte applicant is that, he owned land **parcel number 3402** within **Giithu Adjudication Section**, having inherited the land from his great grandfathers. The interested party filed **Adjudication Register Objection No 190** relating to the said parcel and upon hearing the Objection, the Land Adjudication Officer rendered a decision on 27/05/2024 in which he awarded the interested party ½ portion of the land. The ½ portion awarded to the interested party was assigned number 7587 while the remaining ½ portion retained the original number, 3402. 3. Aggrieved by the decision of the Land Adjudication Officer, the ex-parte applicant lodged an appeal to the Minister under **Section 29** of the **Land Adjudication Act**, to wit, **Appeal No. 202 of 2024,** relating to parcel number **7587**. The said appeal was disposed by the Minister (through the Minister’s Delegatee - the Deputy County Commissioner for Tigania Central) vide a decision rendered on 17/07/2025. He alleges that in hearing and disposing the appeal, the Minister acted unprocedurally, irrationally and *ultravires* (*see paragraph 11 of the statutory statement of facts*). He contends that the Minister denied him a fair hearing and thereby violated his fundamental right to be heard in the land adjudication dispute. 4. The ex-parte applicant contends that the Minister did not serve a notice upon him, inviting him to participate in the proceedings and be heard during the visit to the *locus–in-quo* (during the site visit). He further faults the Minister for considering new issues which had never been considered during proceedings at the Committee stage and points out that the interested party only introduced his claim at the Adjudication Register Objection stage. He adds that the Minister’s decision was irrational because the interested party had not been demarcated as an owner of the suit land at the demarcation stage. 5. The exparte applicant further faults the Minister for not making and keeping a record of the proceedings relating to the visit to the *locus-in-quo*, adding that the record would be fundamental in arriving at a proper decision as it would indicate the parties who were invited and those who attended the proceedings during the visit. He urges the court to grant the orders sought. **Respondents’ Case** 1. The respondents opposed the motion through a replying affidavit sworn on **27/1/2026** by ***Lawrence Muriithi Kinyua***, the Deputy County Commissioner for Tigania Central Sub-County. They also filed written submissions dated 9/4/2026 through ***Ms Esther Wiarimu***, a *Senior State Counsel* in the Office of the Attorney General. The respondents fault the ex-parte applicant for omitting to exhibit the impugned proceedings and point out that all that the ex-parte applicant has exhibited are the findings made in the appeal. They further point out that the exhibited findings do not bear the stamp of the Director of Land Adjudication who is based in Nairobi. 2. The respondents explain that once the Minister’s delegatee disposes an appeal, the delegatee’s office forwards the proceedings and the findings to the Director of Land Adjudication and Settlement in Nairobi and upon the Director confirming compliance with all relevant procedures, he affixes his stamp on the proceedings and issues an implementation order to the relevant office to implement the decision. The respondents assert that the Minister’s delegatee does not retain any proceedings and findings on appeals, adding that a party seeking such proceedings and findings must purchase them from the Director of Land Adjudication and Settlement in Nairobi via the *Ardhi Sasa* platform by paying the requisite fees and obtaining a receipt through the *e-citizen* platform. They fault the ex-parte applicant for failing to exhibit a copy of the receipt. They contend that the exhibited findings were procured irregularly. 3. The respondents state that Appeal No. 202 of 2024 was heard before the Minister’s delegatee on 21/05/2025 in the presence of both the ex-parte applicant and the interested parties. The two parties tendered their evidence and were granted the opportunity to cross-examine those testifying against them. They add that the Minister’s delegatee thereafter visited the *locus-in-quo* to ascertain the parties’ statements. Ultimately, a decision was rendered on the Appeal on 17/07/2025. 4. The respondents state that the Minister’s delegatee forwarded the proceedings together with the findings to the Director of Land Adjudication and Settlement in Nairobi on 6/8/2025 [sic] but the same were returned vide a letter dated 24th July, 2025 [sic], addressed to the Land Adjudication & Settlement Officer, Tigania East, on the ground that the ex-parte applicant did not affix his thumb print against his name. They state that the Minister’s delegatee summoned the ex-parte applicant to his office to affix his thumbprint to the proceedings but the ex-parte applicant refused to do so. They point out that without the ex-parte applicant’s thumbprint, the proceedings cannot be forwarded to the Director of Land Adjudication and Settlement in Nairobi. 5. The respondents contend that they have been unable to exhibit the relevant proceedings and the findings relating to the appeal because the same have not been validated by the Director of Land Adjudication and Settlement as being legally compliant and complete. They fault the ex-parte applicant for stalling the exercise through his refusal to affix his thumbprint against his statement. They maintain that due process was followed at the hearing of the appeal. They add that the Director of Land Adjudication and Settlement has not affixed his stamp on the proceedings because the proceedings are still in the Delegatee’s Office in Tigania Central. They state that an implementation order cannot be issued by the Director in the absence of the proceedings and the findings. They urge the court to dismiss the motion. **Interested Party’s Case** 1. The interested party opposed the motion through a replying affidavit dated 25/3/2026 and witness summons dated 24/4/2026, filed by ***M/s Otieno C. & Company Advocates***. The case of the interested party is that the motion is vexatious, frivolous, a waste of judicial time and an afterthought. He faults the ex-parte applicant for failing to exhibit a copy of the impugned proceedings to enable the court arrive at a just conclusion. He also faults the ex-parte applicant for failing to tender evidence to support the allegation of impropriety. 2. The interested party denies the ex-parte applicant’s allegations that he [the interested party] has never had possession of the suit land. He asserts that he has been on the suit land all through, adding that in 1996, the ex-parte applicant tried to evict him while armed with *pangas*. He further contends that the ex-parte applicant’s allegation that there was no dispute at the Committee stage is a lie, pointing out that there was an adjudication dispute relating to the suit land and the same was determined by the Committee in 2009. He further faults the ex-parte applicant for misleading the court that there was no proceedings relating to the suit land at the Arbitration Board stage, adding that there was **Arbitration Board Case No. 166** in which the ex-parte applicant fully participated and the Arbitration Board held that the suit land was family land. 3. The interested party asserts that during the hearing of the appeal, the ex-parte applicant was duly served with notices. He urges the court to reject and dismiss the motion. **Analysis and Determination** 1. I have considered the motion; the statement of facts; the two affidavits by the ex-parte applicant; the responses to the motion; and the parties’ respective submissions. I have also considered the legal frameworks and the jurisprudence relevant to the key issue in the motion. As observed in the background part of this Judgment, the key issue to be determined in the Judgment is whether a proper case has been made to warrant issuance of an order of mandamus quashing the proceedings and the decision of the Minister in ***Appeal No. 202 of 2024*** relating to land parcel number 7587 in Giithu Adjudication Section. 2. The ex-parte applicant elected to ventilate his **Article 47** grievance on the platform of a motion under **Sections 8** and**9** of the **Law Reform Act** and **Order 53 rules 1(1)** and**2** of the **Civil Procedure Act**. On the face of the motion (**ground number 3**) and on the face of the statutory statement of facts [**paragraphs 9, 10 and 11**], the applicant raised issues relating to: (i) procedural impropriety; (ii) ultra vires; and (iii) illegality. 3. On procedural impropriety, the ex-parte applicant faulted the Minister’s delegatee for failing to serve him with a notice inviting him to attend the site visit [the visit to the locus-in-quo] and the proceedings at the locus-in-quo. He contended that through the above omission, he was denied the opportunity to be heard during the visit to the locus-in-quo and to cross-examine witnesses. This was, without doubt, a serious allegation. What was the 1st respondent’s response to the allegation? 4. In paragraphs 10 and 11 of his replying affidavit dated 27/1/2026, the 1st respondent stated the following in answer to the above serious allegation: ***“10. That Appeal Case No. 202 of 2024 was heard before me on 21/05/2025 wherein both the appellant and the respondent were present together with their witnesses. The appellant gave his statement and was cross-examined by the respondent. The respondent gave his statement and was cross-examined by the appellant. The witness on both sides gave their statements and were cross-examined.*** ***11. That I also visited the ground and the land parcel to ascertain the statements made by the parties during the appeal.”*** 1. It is clear from the above response that the 1st respondent did not appreciate the gravity of the allegation and the gravity of an omission to invite a party to land adjudication proceedings. If he did, he would have addressed the allegation of failure to invite the ex-parte applicant to attend the visit to the *locus-in-quo.* The visit was part of the land adjudication proceedings and all the affected parties were entitled to be invited. 2. Our courts have stated numerous times that the right to be heard in a dispute that affects one’s rights is sacrosanct. In ***Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR***) the Supreme Court stated the following about the right to be heard: ***“Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled.”*** 1. In [***Pashito Holdings Limited & Another Vs Paul Nderitu Ndungu & 2 Others [1997] Keca 423 (Klr)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/423/eng%401997-11-14)the Court of Appeal stated the following: ***“The rule of "audi alteram partem", which literally means hear the other side, is a rule of natural justice. According to Jowitts Dictionary of English Law (2nd Edition)*** ***"It is an indispensable requirement of justice that the party who had to decide shall hear both sides, giving each an opportunity of hearing what is urged against him".*** ***There is an unpronounceable Latin maxim which in simple English means: "He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right".*** 1. Taking into account the nature of the proceedings that the 1st respondent was conducting; and given that the 1st respondent has not controverted the ex-parte applicant’s assertion that he was denied the opportunity to participate in the appeal proceedings during the visit to the *locus-in-quo,* this court agrees with the applicant that there was a fundamental procedural impropriety. 2. On the issue of ultra vires, the ex-parte applicant faulted the 1st respondent for taking fresh evidence in the appeal. It is clear that the ex-parte applicant expected the Minister to handle the appeal the way a civil appellate court handles appeal under the Civil Procedure Act or the way the Court of Appeal handles appeals under the relevant law. His position is that the Minister should not have taken evidence in the appeal. The court does not agree with that view. Hearings relating to appeals to the Minister under **Section 29** of the **Land Adjudication Act** are governed by the **Land Adjudication Regulations**. **Regulation 4 (4)** of the said regulations provides as follows: ***“Subject to the leave of the Cabinet Secretary being first obtained the appellant or any other party to an appeal may attend before the Cabinet Secretary either in person or by an authorized agent, and shall be entitled to call witness.”*** 1. My understanding of the above framework is that the law permits the Minister’s delegatee to take evidence from the parties to the appeal and from witnesses presented by parties to the appeal. The contention that the Minister was barred from taking fresh evidence are without basis. 2. The ex-parte applicant further faulted the 1st respondent through his submissions that the 1st respondent heard the appeal yet he was not the Minister. This point was not raised in the motion and in the statement of facts. The fact that the 1st respondent was exercising a delegated function under **Section 29** of the **Land Adjudication Act**was never contested by the ex-parte applicant. If the ex-parte applicant wanted to raise that as a ground for annulling the decision, he should have formally raised it and thereby invited the 1st respondent to exhibit the instrument that appointed him as the Minister’s delegatee. It was improper for the ex-parte applicant to raise the issue through submissions. 3. The ex-parte applicant further faulted the 1st respondent for failing to find that the interested party having failed to lodge a dispute at the Committee and Arbitration Board stages, he was precluded from lodging an adjudication register objection under **Section 26** of the **Act.** The interested party has contested the allegation that the ex-parte applicant’s entitlement to the suit land was not contested at the Committee and Arbitration Board stages. Secondly, the court does not agree with the ex-parte applicant on his interpretation of the right to object to an adjudication register. **Section 26** of the **Land Adjudication Act** provides as follows: ***“26. Objection to adjudication register*** ***(1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.*** ***(2) The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection.”*** 1. An adjudication register is a culmination of the demarcation and recording of land in an adjudication section. An objection to the register is invited only after the register has been made public and the public knows for the first time what is definitively contained in the register. Through the framework in **Section 26,** Parliament reserved in every person affected by the register the right to lodge an objection. If Parliament intended to make an objection under **Section 26** purely an appellate redress mechanism, nothing would have prevented it from legislating to that effect. Consequently, the ex-parte applicant’s argument on the above point is rejected. 2. In light of the grave omission which the 1st respondent committed by failing to invite the ex-parte applicant to attend the hearing on the day of the visit to the *locus-in-quo,* it follows that the impugned decision cannot stand. This, regrettably, was not the only omission which the Minister’s delegatee committed. The other grave omission was the 1st respondent’s failure to require the ex-parte applicant to append his signature or thumbprint to his statement at the hearing stage. None other than the 1st respondent swore an affidavit indicating that his subsequent invitation to the ex-parte applicant to append his signature to the statement, post-determination, was declined and there had been a stalemate in the mater because the Director of Land Adjudication and Settlement returned the award due to the missing signature/thumbprint. Thirdly, it has also emerged from the exhibited letter of the Director of Land Adjudication and Settlement that the 1st respondent failed to capture his name on the award. 3. For the above reasons, the court finds that a case has been made to warrant issuance of an order of certiorari. The result is that the proceedings and the decision of the Minister’s delegatee in **Appeal No. 202 of 2024** relating to land parcel number **7587** in **Giithu Adjudication Section** is hereby quashed. The appeal shall be heard a fresh by the Minister or a different delegatee to be appointed by the Minister. 4. On costs, the errors leading to the quashing of the decision were inadvertent omissions by the Minister’s delegatee. The Minister was not sued. In the circumstances, parties shall bear their respective costs of the suit. **DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF AUGUST, 2026.** **B. M. EBOSO [MR]** **JUDGE** **In the presence of**: Ms Esther Wairimu for the Respondents Mr Joshua Mwiti for the Ex-parte Applicant Mr Otieno C for the Interested Party Mr E. Tupet – Court Assistant