Republic v Minister for Lands and Settlement Ex parte Narankaik & another

High Court, at Nakuru

May 19, 1988

Tunoi J

Miscellaneous Civil Case No 30 of 1986

Judicial Review – certiorari – when order of certiorari will be granted – appeal to Minister under the Land Adjudication Act (cap 284) section 29 – appeal filed after expiry of the statutory period of sixty days–– delay caused by failure to obtain copies of proceedings before the Land Adjudication Officer in time – whether appeal competent – whether Minister acting in excess of his jurisdiction – whether certiorari should issue to quash decision of Minister – applicability of the Civil Procedure Act (cap 21) and Rules.

Extension of time – for filing appeal to the Minister under the Land Adjudication Act (cap 284) section 29 – whether provisions of the Civil Procedure Act (cap 21) and Rules applicable in computation of time.

A land dispute between the applicants and one Sadera was referred to a Land Adjudication Officer under the Land Adjudication Act (cap 284) section 26. The officer heard and determined the dispute in favour of the applicants.

Sixty-six days after that decision, Sadera lodged an appeal against it with the Minister under section 29(1) of the Act. There had been a delay of about two months in obtaining a copy of the record of the proceedings in the dispute.

The applicants sought orders of certiorari to remove to court and quash the decision of the Minister on the appeal. They argued that the appeal to the Minister was not competent as it had been lodged after the mandatory period of sixty days provided in section 29 and that the Minister had acted in excess of his jurisdiction in accepting, hearing and determining it.

Held:

1. The Land Adjudication Act (cap 284) section 29 was silent on enlargement of time so as to obtain proceedings and it was silent on what documents should accompany the appeal to the Minister. However, the Land Adjudication Regulations in regulation 4(1) required a tracing from the demarcation map of the boundaries of the holdings in the dispute to be attached to the appeal.

2. The party appealing to the Minister had to attach the copy of the decision of the Land Adjudication Officer to the appeal before it could be deemed as properly filed. Furthermore, such a party would specify his grounds of appeal unless he had the copies of the proceedings in the decision of the Officer. He also had to apply for a tracing from the demarcation map.

3. The delay in filing the appeal within the period of sixty days was occasioned by the late receipt of the record of the proceedings. The delay was excusable and indeed reasonable and it was not to be included in the sixty days’ period. Moreover, the appealing party had acted speedily and filed the appeal on the same day he received the record.

4. The irregularity herein did not go into the substance of the matter and it had not prejudiced the appellants in any way who were given their  right of hearing and were present when the decision was delivered.

5. The right of appeal granted in the Land Adjudication Act cannot be exercised in isolation and applied without reference to the Civil Procedure Act (cap 21) and the Rules since the former Act does not constitute a complete code in itself so as to oust and preclude the application of the general provisions of the latter Act and the Rules made thereunder.

6. The delay in filing the appeal did not give rise to an excess or lack of jurisdiction on the part of the Minister and the applicants had not shown an error of law on the face of the record of the proceedings before the Minister. The applicants had therefore failed to show that there existed grounds for granting the order of certiorari.

Application dismissed.

Cases

No cases referred to.

Texts

1. Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol I para 147

2. Jacob, IH et al (Eds) (1963) The Supreme Court Practice 1963 London: Sweet & Maxwell

Statutes

1. Land Adjudication Act (cap 284) sections 26, 29(1)

2. Land Adjudication Regulations (cap 224 Sub Leg) regulation 4(1)

3. Civil Procedure Rules (cap 21 Sub Leg) order 49 rule 3A

4. Civil Procedure Act (cap 21) generally

Advocates

Kimatta for the Applicants

Maraga for the First Respondent

Kiptoo for the Second Respondent