Republic v Ministry of Lands Housing and Urban Development & 7 others; Komen & 4 others (Exparte); Kwambai & 8 others (Interested Party) (Judicial Review E004 of 2022)  KEELC 15258 (KLR) (5 December 2022) (Judgment)
Neutral citation:  KEELC 15258 (KLR)
Republic of Kenya
Judicial Review E004 of 2022
L Waithaka, J
December 5, 2022
Ministry Of Lands Housing and Urban Development
Director Of Land Adjudication, Nairobi
County Land Adjudication And Settlement Officer, Elgeyo Marakwet
Cabinet Secretary For Lands, Housing & Urban Development
Director Of Land Adjudication & Settlement
County Land Registrar, Elgeyo Marakwet
Ministry Of Interior And Co-Ordination Of National Government
Naftali Komen & 4 others
Daniel Kwambai & 8 others
1.Pursuant to leave granted on 8th June, 2022 to the ex parte applicants, to institute judicial review proceedings against the judgment/decision, verdict, findings and proceedings of the 1st to 6th respondents contained in the judgment/decision given on September 22, 2021 in appeal to the Minister case No 83 of 2018, the ex parte applicants, filed the notice of motion dated June 24, 2022 and filed on June 27, 2022 seeking an order of certiorari to remove to this court for purpose of being quashed the said decision.
2.The decision sought to be quashed relates to parcels of land Nos 610, 611, 612, 613, 614, 615, 616, 617 and 618 situated in Upper Cheptebo 'B' Adjudication Section, Elgeyo Marakwet County (hereinafter referred to as the suit properties).
3.The suit properties were subject of the processes of adjudication of rights to land provided for under the Land Adjudication Act(LAA), Cap 284, Laws of Kenya. The process of adjudication of rights over the suit property culminated in an appeal to the Minister to wit Appeal No 83 of 2018. The ex parte applicants who were the appellants in the appeal, lost the appeal.
4.The ex parte appellants had also lost objection proceedings that they had preferred to the Land Adjudication Officer (LAO). They had, however, won the claim before the Land Adjudication Committeee and the Land Arbitration Board.
5.Aggrieved by the outcome of the appeal, the ex parte applicants brought the instant proceedings claiming that they were not given a fair hearing; that the respondents did not observe rules of natural justice; that the respondents were biased against them; acted in excess of their jurisdiction, failed to take into account the parties’ agreement/ memorandum of September 28, 1978 which the ex parte applicant claim was binding on him.
6.The decision of the Minister is said to be tainted with illegality, irrationality and procedural impropriety.
Analysis and determination
7.A detailed judgment/ruling of the LAO shows that he considered the cases urged by the parties to the case before him and the evidence presented. In that regard, see the following excerpts of his decision which attest to that fact.
8.On appeal to the Deputy County Commissioner, Keiyo North (DCC) vide appeal to the Minister Case No 83 of 2018, proceedings of the appeal case shows that parties were heard, by themselves and their witnesses.
9.The DCC Keiyo North considered the case urged before him and made the following findings:-
FindingsParcels number 610, 611, 612, 613, 617 and 618.The defendants of parcels number 610 and 611 are very old and thus would require special attention if they were to appear in person. They have sent a representative, Joseph Kipruto Kwambai-ID number 45XXXX.The defendants in parcel number 612, 613 and 617 are present in court and wish that they are represented by Joseph Kipruto Kwambai-ID No 45XXXX for the original family land was subdivided to create these individual parcels.Parcel number 618 is registered under the name of Joseph Kipruto Kwambai-ID number 45XXXX and he is present in court.1)The defendants have lived on these parcels No 610, 611, 612, 613, 617 and 618 for a very long period of time, some since 1972 while on these parcels, they have referred to these parcels as their ancestral home and they have developed permanent structures on the parcels depending on the ability of an individual. The defendants have further planted perennial crops such as mangoes and cotton. They have supplied piped water and electricity to their homesteads.2)The appellant and the defendants were aware of the survey work which was to start in the Upper Cheptebo ‘B’ Section. Elders agreed to demarcate land parcels to individuals found on the places they live to which the defendants were registered accordingly and respectively on their plots. The law of adverse possession would further benefit the defendants on those parcels.3)The defendants representatives or next of kin have demonstrated and explained clearly how they have buried their loved ones on parcels Nos 614, 615 and 616 without any one objecting to such burials.4)The appellants have never used or lived on those parcels. They have no development records on the parcels under dispute.5)Given the stated duration of time the late defendants had occupied the suit properties to the present time when their children are occupying these parcels, the law of adverse possession would automatically allow them to own these parcels of land compared to the appellants and others who have never utilized these parcels Nos 610, 611, 612, 613, 617 and 618.
10.Appeal dismissed parcel Nos 610, 611, 612, 613, 617 and 618 to remain registered as follows:-1.Parcel No 610To remain registered under the name of Daniel Kwambai2.Parcel No 611To remain registered under the name of Richard Kibet Kigen.3.Parcel 612To remain registered under the name of Henry Kurgat.4.Parcel 613To remain registered under the name of James Sawe.5.Parcel No 617To remain registered under the name of Paul Kiptarus.6.Parcel No 618To remain registered under the name of Joseph Kipruto Kwambai.
11.Although it is not part of the duty of this court to consider the merits of the decision of the Minister or the other tribunals established under LAA, for purposes of ascertaining interests in land under adjudication, I have set down excerpts of the proceedings of the case before the LAO and the Minister with a view of demonstrating that those tribunals, in discharge of the mandate vested in them, heard the cases presented before them, evaluated the evidence and arrived at decisions based on their own appreciation of the evidence.
12.It is trite law that this court has no power to sit on appeal on those decisions. All what it can do, is to review the proceedings with a view of determining the legality or otherwise of those proceedings.
13.Whereas in the circumstances of this case, the ex parte applicants contend that there were illegalities and/or unfairness, bias in the proceedings that culminated in the impugned decision of the Minister, they have adduced no evidence capable of proving the pleaded, illegality, bias, unfairness and lack of jurisdiction on the part of the Minister to make the decision he made.
14.A review of the impugned decision shows that the parties were heard by themselves and their witnesses and the evidence tendered considered before a decision was made.
14.Whilst the ex parte applicants claim that the Minister was duty bound to abind by the agreement/memorandum signed between the parties in 1978, no law or rule of procedure was cited in support of the applicants’ claim or contention. Being the ones who desired a ruling based on that contention, the applicant should have given the law or rule of procedure on which they based their claim. This court knows of no legal obligation placed on the Minister or the other tribunals under LAA to, in exercise of their duties under LAA to give effect to agreements or memorandums signed between parties before them. All what they are required to do, is to consider such document as part of the evidence presented and if there be good reason, they are not bound to rely on such agreement if not in tandem with the totality of the evidence adduced before them.
15.The upshot of the foregoing is that this suit is found to be lacking in merit and is dismissed with costs to the respondents and the interested parties.
DATED, SIGNED AND DELIVERED, AT ITEN THIS 5TH DAY OF DECEMBER, 2022.L. N. WAITHAKAJUDGEJudgment read virtually in the presence of:Mr. cheptarus for the exparte applicantMs. Cheruiyot h/b for Mr. Leting for 1st – 6th respondentsChristine Towett – Court Assistant.