[2017] KEELC 184 (KLR)
The court held that Section 30(3) of the Land Adjudication Act requires a formal communication of consent denial by the District Land Adjudication Officer before an aggrieved party can appeal to the Minister. In the absence of such formal communication, the statutory period for appeal does not commence, and the...
Source-derived case information.
- Citation
- [2017] KEELC 184 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Adjudication & Settlement Officer Igembe North District; Respondent: Hon. Attorney General; Interested Party: Japhet Kamonyo; Applicant: Reuben Liria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Leave for Judicial Review
- Outcome
- Preliminary objections dismissed; leave to apply for judicial review orders of mandamus granted.
- Legal Topics
- Judicial Review, Land Adjudication, Mandamus Orders, Exhaustion of Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Adjudication & Settlement Officer Igembe North District
Respondent
Hon. Attorney General
Respondent
Japhet Kamonyo
Interested Party
Reuben Liria
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Leave for Judicial Review
Legal Issues
- 1 Whether the Exparte Applicant is required to exhaust the appeal mechanism under Section 30(3) of the Land Adjudication Act before seeking judicial review orders of mandamus.
- 2 Whether the absence of formal communication of consent denial by the 1st Respondent precludes the Applicant from appealing to the Minister.
- 3 Whether the preliminary objections raised by the Interested Party and Respondent are merited.
Ratio Decidendi
The court held that Section 30(3) of the Land Adjudication Act requires a formal communication of consent denial by the District Land Adjudication Officer before an aggrieved party can appeal to the Minister. In the absence of such formal communication, the statutory period for appeal does not commence, and the Applicant cannot be faulted for not exhausting the appeal mechanism. The preliminary objections, which were premised on the alleged failure to exhaust alternative remedies, are therefore unmerited. The Applicant is entitled to seek leave for judicial review orders of mandamus as the statutory process has been frustrated by the Respondent's inaction.
Court Disposition
Preliminary objections dismissed; leave to apply for judicial review orders of mandamus granted.
Orders
- Both preliminary objections are dismissed with costs to the Exparte Applicant.
- The application dated 17.10.16 is allowed.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 32 OF 2016
MISC. CIVIL APPLICATION FOR JUDICIAL
REVIEW ORDERS OF MANDAMUS
AND
IN THE MATTER OF SECTION 8 & 9 OF THELAW
REFORM ACT (CAP. 26 LAWS OF KENYA )
AND
IN THE MATTER OF SECTION 30 OF THE LAND
ADJUDICATION ACT (CAP.284 LAWS OF KENYA
AND
IN THE MATTER OF THE DISPUTE OVER OCCUPATION AND
OWNERSHIP OF THE LAND PARCEL NUMBERS 5796 IN
AKIRANG’ONDU ‘A’ADJUDICATION SECTION
IN IGEMBE NORTH DISTRICT
BETWEEN
REPUBLIC.................................................................................APPLICANT
VERSUS
THE DISTRICT LAND ADJUDICATION & SETTLEMENT
OFFICER IGEMBE NORTH DISTRICT...................1ST RESPONDENT
THE HON. ATTORNEY GENERAL..........................2ND RESPONDENT
JAPHET KAMONYO..............................................INTERESTED PARTY
EX-PARTE APPLICANT..................................................REUBEN LIRIA
R U L I N G
BACKGROUND
The Preliminary Objection filed by the Interested Party on 08. 12. 16 and by the Attorney General filed on 06. 12. 16 raise just one issue. That the application filed on 17. 10. 16 offends the express provisions of section 30(3) of cap 284 (land Adjudication Act) laws of Kenya.
In the application of 17. 10. 16, the Exparte Applicant is seeking leave to apply for Judicial Review orders of Mandamus.
The background of the matter is that Exparte Applicant claims that the Interested Party has unlawfully alienated part of the property known as 5796 in Akirangondu “A” Adjudication Section which land belongs to Exparte Applicant. The Exparte Applicant desires to institute a civil suit in order to recover the alienated portion of land. To do that, the Ex Applicant requires consent of the 1st Respondent. He applied for the same but it was not forthcoming hence the present application.
The parties agreed to have the matter canvassed by way of Written Submissions.
Submissions:
According to the Interested Party and Respondent it is averred that the Exparte Applicant has not exhausted the laid down mechanisms provided for under Section 30 of cap 284 in the matter of obtaining the requisite consent.
They aver that if the Consent was denied, then Exparte Applicant ought to have appealed to the Minister as is provided for under Section 30 (3) of the aforementioned Act. To buttress their case, both Interested Party and Respondent have cited the cases of Mary Wangui Parmutia & Anor v. District Land Adjudication & Settlement Officer & 2 others JR 23 OF 2015 ELC Nakuru and the case of Stephen Muchuki Kiunga v. Nkuni M’Turuchiu & 2 Otehrs Pet No.21 of 2012 ELC Meru. In both cases, the Court was dealing with a situation where the claimants had not exhausted the Appeal Mechanism provided for under Section 30 of Cap 284.
For the Exparte Applicant it has been argued that the appeal to the Minister is not due because the District Land Adjudication Settlement Officer has not made any official communication. The Exparte Applicant hence argues that Wangui Parmutia’s Case can be distinguished from the present case.
Determination
Annexture RL2 in the Exparte Applicant’s documents is the letter written to 1st Respondent on behalf of Exparte Applicant in order to trigger the process captured under Section 30 of Cap 284. From the contents of paragraph 16 and 18 of the Exparte Applicant’s Affidavit of 17. 10. 16, the 1st Respondent has simply declined to issue the consent.
Under S. 30(3) of Cap 284, an aggrieved person is supposed to appeal to the Minister within 28 days from the time the consent was denied.
If Exparte Applicant was to appeal to the Minister, what would be his reference point?. What date would he quote as the date of refusal of the consent.
This is a case where the Respondent doesn’t indicate his stand to the applicant’s request for consent.
The case can therefore be distinguished from the authorities cited by Respondent and Interested Party. Section. 30 (3) of Cap 284 contemplates situation where the 1st Respondent makes a formal communication to deny or give consent or to make relevant directions. It is only then that Exparte Applicant would be able to move to the next step. As at now, I am in agreement with Exparte Applicant’s contention that it is not possible to determine when the 28 days period will run from, unless a formal communication is made.
Conclusion
I therefore find that both preliminary Objections are unmerited. They are dismissed with costs to Exparte Applicant.
The Application of 17. 10. 16 is allowed.
Further, the Exparte Applicant is hereby granted leave to apply for Judicial Review orders of Mandamus. The substantive motion to be filed and served within 21 days from today.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 4TH DAY OF OCTOBER, 2017
IN THE PRESENCE OF:
CA: Janet
Kiongo for Respondent present
Kiome h/b for Karuti for Exparte Applicant
Hon. L.N. MBUGUA
ELC JUDGE