The exparte applicant Esao Koimett, has come to the court against the Cabinet Secretary Ministry of lands, Attorney General, County Government of Baringo and Deputy County Commissioner Mogotio sub- County praying for judicial review orders namely that:-
1. This Honorable Court be pleased to issue an order of Certiorari to remove into this honorable court for the purposes of being quashed and quashing the unfair undated and signed proceedings and decisions of the Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number163, 164 and 164 of 2011 between Esao Koimet and County Council of Koibatek
2. This Honorable Court be pleased to issue an order of PROHIBITION to prohibit/prohibiting the Respondents by themselves, agents, employees or whomsoever from taking any steps, actions and/or measures to enforce or implement the decisions contained in the undated proceedings, decisions and Rulings delivered on 6th April 2024 by Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number 163, 164 and 164 of 2011 between Esao Koimet and z County Council of Koibatek.
3. This Honorable Court be pleased to issue an order of PROHIBITION to prohibit/prohibiting the 3rd Respondent by themselves, agents, employees or whomsoever from taking any steps, actions and/or measures to enforce or implement the decisions contained in the undated proceedings, decisions and Rulings delivered on 6th April 2024 by Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number 163, 164 and 164 of 2011 between Esao Koimet and County Council of Koibatek.
4. This Honorable court be pleased to issue for an order of Mandamus to compel/compelling the 1st Respondent to rectify/or reopen the adjudication records (AR), revert and allocate plot 179,180 and 181 Aram Kindonin as per the recommendations of The District Land Adjudication & Settlement Officer Koibatek District in a letter dated 8th April 2009 to the Applicant.
5. Any order (s) that this court deems just and equitable as the situation demands and as the need arises.
The application is based on grounds that the Minister's decision failed to take into account relevant considerations such as that the Applicant's family has habited the contested land for more than 60 years. Moreover that the Minister failed to take into consideration that the land in question is ancestral land of the Applicant the land having descended from the Kapkoimett family.
The applicant alleges that the Minister ignored a letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family. The said correspondence in reply was prompted by a letter Solomon Koimett, the Clerk of the County Council of Koibatek citing erroneous allocation parcel 179 Aram/Kindonin occasioned by spiteful vendetta of the Adjudication Committee Chairperson against the Koimett family. That taking into consideration of the serious allegations of conflict of interest of the Adjudication Chairman plot 179 was reverted to the Applicant's family. According to the applicant, the Minister's decisions violated the legitimate expectations of the Applicant. Throughout the proceedings the Minister misrepresented that the process would be fair and procedural practices would be adhered to.
The Applicant avers that mandatory and material procedure was not complied with as follows:
1. The Minister ignored the letter of from the Clerk of Koibatek County Assembly through the District Land Adjudication & Settlement Office which had reverted the land to the Applicant.
2. The Minister ignored the Applicant presentations alluding that the matter had since been resolved and the appeal rendered nugatory vide letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family.
3. The Minister out of nowhere (from 2007) summoned the Applicant to a hearing on 17th May 2023.
4. The hearing commenced on an illegality.
5. The Minister failed to furnish the Applicant and his family with a Gazette Notice delegating her/his duties to Mogotio Deputy County Commissioner.
6. The Minister failed to furnish the Applicant with a Letter of Authority appointing one Mr. Anthony Tanui as the defendant.
7. The defendant was wrongly joined as it ought to have been a representative from Baringo County Government.
8. The Minister acted in bad faith by arguing the case for Catholic church who should have been called as interested parties but not defendant's witness.
9. The Minister denied reasonable opportunity to the Applicant and Kapkoimett family at large to state their case ignoring the scale of ensuing decisions which disinherited an entire clan from its ancestral home.
The Applicant avers that the process culminating to the Minister's decisions pertaining the three parcels were marred with illegalities and improper procedures. Namely using a fictitious defendant named County Council of Koibatek instead of Baringo County Government. Collusion of defendants' witness as they gave a single-lined narrative pertaining to parcel 179, 180 and 180 all influenced by bad blood with the Kapkoimett family. According to the applicant, under section 4 (3) of the Fair Administrative Action Act, 2015, where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator is required to give the person affected by the decision a prior and adequate notice of the nature and reasons for the proposed administrative action and an opportunity to be heard and to make representations in that regard. The 1st Respondent failed to give the Applicant and his extended family an opportunity to be heard prior to making the decision. The Minister ignored issues of conflict of interest which had motioned the Minister's appeal stemmed from the bitterness and bad relation between then Adjudication Committee chairperson and the Applicants family.
The salient facts of the affidavit verifying the facts relied upon are that the exparte applicant resides on plot number 179 Aram Kindonin in Mogotio Sub- County within Baringo County Farming and keeping Livestock on the said land. On Tuesday 7th May 2024 the 3rd Respondent through its agents and servants brought down the fence of plot 179 and dug holes in preparation for a tree planting exercise despite the applicant's plea. That at all times the parcels of land numbered 179, 180 and 181 have been the ancestral property of the Kipkoimet Family. That in the 1960s when he was still in school the applicants father (deceased) who worked as forest officer instructed them to use small portion of land and keep the remainder as a conservancy.
The applicants family has since claimed and inhabited for sixty (60) years the southern part of Sorti forest, the eastern part of Mogotio Ward and Emining Ward which was adjudicated in Mogotio ward and the western part which is registered under Kikoirnet Tuitoek. The adjudication was done in the 1960s.
The applicants’ family made a decision to amalgamate the expansive land to make it easier to manage, the parcel being 179, 180 and 181 which lay claim having conserved. That when the adjudication process was being finalized they were summoned to verify the register and they noted errors on plot 179 because there was insertion of Sorti Primary School and Catholic Church.
The Adjudication Committee shortchanged the applicants’ family by dispossessing it of nearly 300 acres of the Aram Kindonin section despite the fact that they preserved the indigenous forest for many years. That his brother Solomon Koimett (now deceased) wrote a letter dated 3rd March 2009 to the Clerk County Council of Koibatek decrying erroneous allocation of land parcel 179 Aram/Kindonin in Koitebes location.
That the letter was accompanied with an attachment titled "Report of Reasons and Issues Concerning Dispute About Adjudication of Trust Land-Aram/Kindonin. The report stated in clear terms that the decision to disposes the Koimett family was actuated by malice of the Chairman of the Adjudication Committee owing to village familial disputes. Further, if the decision of the Adjudication committee was allowed to stand the Applicant and his extended family would be rendered landless because they had no alternative land.
On 9th April 2009, the District Land Adjudication & Settlement Officer Koibatek District wrote a letter to the Applicant reverting parcel 179 to their family. The matter died only to be resurrected sometime in 2011 by a new District Land Adjudication & Settlement Officer which promoted the Applicant to file appeal cases 163, 164 and 165 against the County Council of Koibatek. Again, the case died until the Applicant was summoned for a hearing of the appeal at Mogotio Deputy County Commissioner Office on 17th May 2023.
The defendant witnesses were the members of the Adjudication Committee which dispossessed the Applicant of their land. That the beneficiaries of the Estate of his Late Brother Solomon Koimett wrote a letter to the 4th Respondent clearly stating irregularities of the adjudication section and denial of a chance to make representation in the hearing as they had not been summoned to attend yet their father was actively involved in the case at Adjudication level. The 4th Respondent dismissed all the appeal cases. The applicant believes that the Minister's decision is tainted with malice, illegality and bad faith because he provided a comprehensive response of ownership of parcels 179, 180 and 181. It is unfair, unprocedurally wrong and excessive use of public office for the Respondents to issue such life-altering decisions without due considerations. The said decision is not only bad in law but ultra-vires. The exparte applicant claims to have honored summons. Tendered evidence to support any claim over the said parcels but the same have been ignored by the Minister. The Respondents' actions are therefore punitive and only aimed at punishing him and his family.
It was the Applicant's legitimate expectation that the Respondent, having issued formal government letter reverting the land to the Koimet family then should have had the cases had logically concluded as such. It is therefore unfair and punitive for the Respondent to renege and callously make unexplainable, unreasonable and unjustifiably decision against the Applicant. He is advised by his counsel which advise he verily believes to be true, that the Respondent's actions do fly on the face of Article 47 of the Constitution of Kenya 2010.
He is further advised as above that Article 47 of the Constitution of Kenya 2010 guarantees every person a right to an administrative action that is expeditious, efficient, Aimful, reasonable and procedurally fair. That the Respondent's decisions and or actions offends the principles set out in Article 47 Constitution of Kenya 2010. That the Respondent is denying him equal benefit and equal protection of the law as outlined under Article 27 of the Constitution of Kenya and also the right to tender evidence in support of his claim.
In response, Rael Ramkat, the D.C.C Mogotio Sub-County states that all Deputy County Commissioners in Kenya have been delegated with the powers to preside over the Appeals to the Cabinet Secretary under the Land Adjudication Act delegating the authority of the minister.
That she has been advised by the State Counsel in conduct of this matter that the Applicants have not demonstrated the impropriety of the decision of the Cabinet Secretary for lands. That the instant Application delves much into the merits and the demerits of the decision of the Cabinet Secretary, Lands.
That it is not true that the proceedings to the minister, now Cabinet Secretary Lands, have been rendered nugatory by virtue of a letter by the Director Land Adjudication Officer- Koibatek District as there exists no such letter. That the only letter dated 8th April, 2009 was a letter by the County Council of Koibatek confirming they had no objection to the reversion of the property and requesting the District Land Adjudication Officer to assist the family of Koimeit. That it is not true that the Applicants family was not represented during the hearing of the Appeals case.
According to the respondent, the total acreage of Land Parcel adjudication record numbers179, 180 and 181 subject matter in this suit covers over 300 acres of land. That it is not true that land parcel number 179 has been the ancestral land of the Applicants herein from over sixty years as alleged. That Land parcel number 179 is a forest area currently reserved as trust land in the name of the County Council of Koibatek.
In a supplementary affidavit, Essao Koimett states that the 4th respondent visited the site and saw for herself. He reiterates his statement that the 4th respondent ignored the weighty letter of Kiobatek’s District Land Adjudication and Settlement Officer dated 8th April 2009 which reverted the entire parcel No.179 to the Kapkoimet Family as she refused to admit the letter as applicants’ evidence during appeal. The land was reverted to Essao Koinett by the District Land Adjudication & Settlement Office Koibatek hence the matter could only be reviewed through an appeal or review. His family has claimed the conservancy since 1970 till todate. The forest is not a conservancy under County Government of Baringo.
The 3rd respondent filed grounds of opposition whose import is that this Honorable Court lacks jurisdiction to entertain this suit at the first instance as it offends, the provisions Of Section 30 of the Land Adjudication Act (Cap 284) and Section 8 of the Land Consolidation Act (Cap. 283) relating to ascertainment and recording of rights and interests inland.
That this Honorable Court lacks jurisdiction to entertain this suit as the Applicant has not obtained consent from the District Land Adjudication Officer pursuant to the provisions of Section 30 of the Land Adjudication Act and Section 8 of the Land Consolidation-Act before lodging this instant suit. The aapplication therefore according to the 3rd respondent, does not meet the threshold for judicial review and instead seeks to challenge the merits of decisions made by the Land Adjudication Committee and on the 1st Respondent.
That in the year, 2009, Land Adjudication Committee, ("the Committee") of the Aram/Kindonin Adjudication Section proposed that parcel No. 179 be allocated to the County Government of Koibatek and that On 3rd March, 2009 the Applicant wrote to the County, Council of objecting to the designation of Parcel 179 as a public utility and subsequent allocation to the County Council of Koibatek. Vide a letter dated 8th April 2009, the County Council of Koibatek wrote to the District Land Adjudication Settlement Officer and confirmed that the Committee, Town Pertaining; Markets and Works resolved to have the whole parcel No 179 revert to the Applicants -family. Consequently, it did not have an objection to having the property revert back to-the Applicants family.
The aforementioned position by the County Council of Koibatek Was discussed on 18th June, 2009 by the Land Adjudication Committee which upon considering the evidence presented together with the testimonies of witnesses given, made a determination on, 24th June, 2009. The Applicant being aggrieved by the aforementioned decision lodged an appeal to the Respondent which was considered and a determination rendered dismissing the Appeal. The 1st respondent further directed that the boundary be demarcated around the conservation area to ward off encroachment and further, area to remain as a conservation as earlier recorded.
From the foregoing, the applicant has not presented any reasonable or justifiable reason for this Honorable Court to interfere with the decision of the 1st respondent affirming the decision of the committee that parcel No. 179 is a public forest under the care of the 3rd respondent.
Further, the Applicant does not demonstrate that the decisions by both the Committee and the 1st Respondent are marred with illegality, irrationality and procedural impropriety. Consequently, the application should be dismissed with cost.
The applicant submits that the application is properly before the court as the court has jurisdiction to entertain the suit as the necessary statutory requirements and mechanism provided under the Land Adjudication Act have been finalized. The applicant argues that the Act is clear that any person aggrieved by the decision of the Ministers made under section 26 of the Act must follow the process under section 29 and appeal to the Minister. Once the Minister from the panel delegated to make the decision makes the determination, his order is final. That means the minister decision cannot be appealed, whether under the Act or in court. The only option is for the appellant to pursue a Judicial Review process provided under Articles 47 of the Constitution and the Fair Administrative Action Act 2015, a statute enacted pursuant to the Article 47 of the Constitution of Kenya.
The applicant argues that the 4th Respondent having delivered her Appeal rulings finalized the matter. On whether the decision was arrived at in the manner envisaged by the law, the applicant submits that the proceedings before the Minister were flawed with gross irregularities and un-procedural conducts by the panel sitting in Appeal to the Minister Cases No. 163/2022 (Plot No 179), 164/2011 (Plot No 180), 165/2011 (Plot No 181) and thus arriving at an unjust and unfair decision/finding.
The Applicant submits that the Minister's decisions pertaining parcel 179,180 and 181 to dispossess the Applicant and his extended family from their ancestral land is illegal, is unreasonable, irrational, is in bad faith, constitutes an abuse of power, is in breach of the rules of natural justice, evidentiary laws and is in breach of the Applicant's legitimate expectation. The Applicant is livid of applicability of judicial review in this matter. That is, it concerns itself with the procedure applied in arriving at the impugned decision and not the merits of the decision. The court will therefore confine itself with the decision-making process and not the merits of the decision. The Applicant frown at the decision-,making process in the Appeal of the Minister.
The applicant relies on the principles for Judicial Review set out in the landmark case of Republic —vs- Kenya National Examination Council Ex-parte Geoffrey Gathenji Njoroge & 9 Others [19971 eKLR where the Court of Appeal stated inter alia:
"That an order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of judicial review is not concerned with the merits of the case, but the decision — making process. In order for an applicant to succeed in an application for judicial review, he must satisfy the court that a public officer has acted procedurally, that his decision was unreasonable and that the impugned decision was illegal..."
Similarly, in the case of Municipal Council of Mombasa —vs- Umoja Consultants Ltd [20021 eKLR, the Court of Appeal held that:
"Judicial review is concerned with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a court of Appeal over the decider which would involve going into the merits of the decision itself, such as whether there was or there was not sufficient evidence to support the decision.
The Applicant submits that the Minister's decision failed to take into account relevant considerations such as that the Applicant's family has habited the contested land for more than 60 years. The Minister failed to take into consideration that the land in question is ancestral land of the Applicant the land having descended from the Kapkoimett family. The Minister ignored a letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel179 to the Applicant's family. The said correspondence in reply was prompted by a letter Solomon Koimett who Clerk of the County Council of Koibatek citing erroneous allocation parcel 179 Aram/Kindonin occasioned by spiteful vendetta of the Adjudication Committee Chairperson against the Koimett family. That taking into consideration of the serous allegations of conflict of interest of the Adjudication Chaiman plot 179 was reverted to the Applicant's family.
The Applicant submits that mandatory and material procedure was not complied with as the Minister ignored the letter of from the Clerk of Koibatek County Assembly through the District Land Adjudication & Settlement Office which had reverted the land to the Applicant. The Minister ignored the Applicant presentations alluding that the matter had since been resolved and the appeal rendered nugatory vide letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family.
The Minister out of nowhere (from 2007) summoned the Applicant to a hearing on 17th May 2023. The hearing commenced on an illegality.
The Minister failed to furnish the Applicant with a Gazette Notice delegating her/his duties to Mogotio Deputy County Commissioner-
The Minister failed to furnish the Applicant with a Letter of Authority appointing one Mr. Anthony Tanui as the defendant. The defendant was Wrong1y joined as it ought to have been a representative from Baringo County Government. The Minister acted in bad faith by arguing the case for Catholic church who should have been called as interested parties but not defendant's witness.The Minister denied reasonable opportunity to the Applicant and Kapkoimett family at large to state their case ignoring the scale of ensuing decisions which disinherited an entire clan from its ancestral home specifically administratrix of the Estate of Solomon Kipruto Koimett. In view of the above, the decision-making process was tainted with illegality, and made without regard to the rules of natural justice. Ultimately, the appellant argues that the orders sought are available to be granted by the court.
The 3rd respondent argues that this court lacks the prerequisite jurisdiction to hear and determine this matter at the 1st instance as it offends Section 30 of the Land Adjudication Act Cap 284 and section 8 of the Land Consolidation Act (Cap 283) pertaining to ascertainment and recording of rights and interests in land. The 3rd respondent argues that the applicant did not obtain a consent in writing from the Adjudication officer which could have clothed the court with jurisdiction.
The third respondent argues that the applicant is challenging the decision of the 1st and 4th respondents concerning interest in the land rather than the decision making process hence the jurisdiction of the court has been improperly invoked. The 3rd respondent argues that the applicant has not met the threshold of grant of Judicial Review orders.
The 3rd respondent further argues that as to whether the threshold for grant of judicial review orders was met, the applicant was under a duty to establish that the Committee either lacked jurisdiction or the decision was marred with illegality, irrationality and procedural impropriety which they failed to do.
The Applicant exercised their right of appeal by lodging an appeal to the 1st Respondent which was considered and a determination rendered dismissing the Appeal, The 1st Respondent further directed that the boundary be demarcated around the conservation area to ward off encroachment and further, the area to remain as a conservation as earlier recorded.
The facts of this suit is that the due, fair, reasonable and procedural process was followed. The proceedings of the Appeal hearing dated 17th May 2023 provide evidence as to whether the necessary parties were heard and their input taken into consideration when making the final decision.
The 3rd respondent submits that the application does not meet the threshold for grant of judicial review orders sought. The Applicant has not presented any reasonable or justifiable reason for this Honorable Court to interfere with the decision of the 1st Respondent affirming the decision of the Committee that parcel number 179 is a public forest under the care of the 3rd Respondent. The 3rd respondent argues that the Judicial Review application should be dismissed with costs.
ANALYSIS AND DETERMINATION
The 1st issue to be determined by this court is whether it has the jurisdiction to determine this application. On this issue, it will be a misnomer to hold that consent of the Land Adjudication Officer was necessary for filing of the Judicial Review application because in judicial Review, the court will not determine the interest of the parties but the decision-making process of the respondents and therefore the court does not go into the merits of the decision. Moreover section 29 of the Land Adjudication Act Cap 284 of the Laws of Kenya which gives the minister the power to hear the appeal to the Minister and make a determination. This determination can only be challenged by way of judicial review. This court agrees with the holding in the case of Julia Kaburia vs. Kabeera & 5 Others [20071 eKLR, where the Court commenting on Section 30 of the Act, held:-
"The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. By Section 30 (1) (2), the jurisdiction of the court is ousted once the process of land adjudication has started until the adjudication register has been made final ...In our respective view, the consent envisaged by Section 30 to institute or continue with civil proceedings is not a consent to file a suit challenging the decision of the Land Adjudication Officer himself on the merits of his decision. Rather the consent is given to a person to file a suit or continue with a suit against persons who have a competing claim on the land under adjudication. This protection was availed to the parties herein by the appellate process which culminates with Section 29 of the Act;"(l) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-a delivering to the Minister an appeal in writing specifying the grounds of appeal; and sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
I do agree with the applicant that the court has the jurisdiction to entertain the application for judicial review because it does not seek to establish some interest to the applicant but whether the respondents acted legally, rationally and procedurally in reaching their impugned decision. In the context of judicial review, there are three main grounds for challenging the decision of a public body or authority:
On the merits of the application, this court observes that the 1st ground for grant of judicial review orders is based on the legality of the decision. This ground is based on the notion that the decision-maker has to act within his powers. The decision can only be quashed if the authority has acted outside their powers or in breach of the law. The decision may be unlawful due to a failure to follow a specific procedure, a misinterpretation of the law, or a failure to consider relevant factors. On illegality, I have considered the decision made by the 1st respondent and do find that the applicant has not proved any illegality as the 1st respondent had the power to make the same pursuant to the provisions of section 29 of the Land Adjudication Act Cap 284 of the Laws of Kenya. This court further finds that Gazette notice No.6854 of 13th September 2014 delegated the powers to hear and determine appeals and related duties and function under section 29 of the Land Adjudication Act Cap 284 to the Deputy County Commissioner of all sub Counties except the Sub- counties of Nairobi City County. The applicant has not demonstrated any illegality on the part of 1st respondent.
The second ground is irrationality also known as Wednesbury Unreasonableness. This ground is based on the idea that the decision-maker has acted irrationally or unreasonably. The decision may be challenged if it is deemed to be arbitrary, capricious, or without sound reasoning. On rationality, the decision by the 1st respondent was based on the law and facts that were presented to the 1st respondent. The 4th respondent considered the fact that the applicant had been allocated plot No.250 that boarders the conservation area but he wanted to take control of all the conservation area and had cultivated part of it for private use. He did not want any other member of the community to access the conservation area. There was a ground visit and it was found that the land is covered by a natural forest and therefore it was agreed that the area should remain under County Government of Baringo but not under an individual’s conservancy. This court finds that the decision was rational and reasonable as the land under forest cover did not belong to the applicant but to the community. The proper body to control the forest was the County Government of Baringo as the forest area was public land.
The 3rd ground is Procedural Impropriety which is based on the idea that the decision-maker has failed to follow the proper procedures or has acted in a way that is unfair or biased. This can include a failure to provide adequate notice, a failure to consider relevant representations, or a failure to provide adequate reasons for the decision. I do find that the applicant was given notice for hearing and was heard and a decision was made. This court is not supposed to go into the merit of the decision of the 1st and 4th respondent but the decisions making process. The applicant was heard by the decision maker and a decision was made. I do find no reason to impugn the decision of the minister on the basis of procedural impropriety. The upshot of all the above is that the application lacks merit and is dismissed with costs.
1. This Honorable Court be pleased to issue an order of Certiorari to remove into this honorable court for the purposes of being quashed and quashing the unfair undated and signed proceedings and decisions of the Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number163, 164 and 164 of 2011 between Esao Koimet and County Council of Koibatek
2. This Honorable Court be pleased to issue an order of PROHIBITION to prohibit/prohibiting the Respondents by themselves, agents, employees or whomsoever from taking any steps, actions and/or measures to enforce or implement the decisions contained in the undated proceedings, decisions and Rulings delivered on 6th April 2024 by Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number 163, 164 and 164 of 2011 between Esao Koimet and z County Council of Koibatek.
3. This Honorable Court be pleased to issue an order of PROHIBITION to prohibit/prohibiting the 3rd Respondent by themselves, agents, employees or whomsoever from taking any steps, actions and/or measures to enforce or implement the decisions contained in the undated proceedings, decisions and Rulings delivered on 6th April 2024 by Deputy County Commissioner Mogotio Sub-County on behalf of the Cabinet Secretary, Ministry of Lands in Appeal to the Minister case number 163, 164 and 164 of 2011 between Esao Koimet and County Council of Koibatek.
4. This Honorable court be pleased to issue for an order of Mandamus to compel/compelling the 1st Respondent to rectify/or reopen the adjudication records (AR), revert and allocate plot 179,180 and 181 Aram Kindonin as per the recommendations of The District Land Adjudication & Settlement Officer Koibatek District in a letter dated 8th April 2009 to the Applicant.
5. Any order (s) that this court deems just and equitable as the situation demands and as the need arises.
The application is based on grounds that the Minister's decision failed to take into account relevant considerations such as that the Applicant's family has habited the contested land for more than 60 years. Moreover that the Minister failed to take into consideration that the land in question is ancestral land of the Applicant the land having descended from the Kapkoimett family.
The applicant alleges that the Minister ignored a letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family. The said correspondence in reply was prompted by a letter Solomon Koimett, the Clerk of the County Council of Koibatek citing erroneous allocation parcel 179 Aram/Kindonin occasioned by spiteful vendetta of the Adjudication Committee Chairperson against the Koimett family. That taking into consideration of the serious allegations of conflict of interest of the Adjudication Chairman plot 179 was reverted to the Applicant's family. According to the applicant, the Minister's decisions violated the legitimate expectations of the Applicant. Throughout the proceedings the Minister misrepresented that the process would be fair and procedural practices would be adhered to.
The Applicant avers that mandatory and material procedure was not complied with as follows:
1. The Minister ignored the letter of from the Clerk of Koibatek County Assembly through the District Land Adjudication & Settlement Office which had reverted the land to the Applicant.
2. The Minister ignored the Applicant presentations alluding that the matter had since been resolved and the appeal rendered nugatory vide letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family.
3. The Minister out of nowhere (from 2007) summoned the Applicant to a hearing on 17th May 2023.
4. The hearing commenced on an illegality.
5. The Minister failed to furnish the Applicant and his family with a Gazette Notice delegating her/his duties to Mogotio Deputy County Commissioner.
6. The Minister failed to furnish the Applicant with a Letter of Authority appointing one Mr. Anthony Tanui as the defendant.
7. The defendant was wrongly joined as it ought to have been a representative from Baringo County Government.
8. The Minister acted in bad faith by arguing the case for Catholic church who should have been called as interested parties but not defendant's witness.
9. The Minister denied reasonable opportunity to the Applicant and Kapkoimett family at large to state their case ignoring the scale of ensuing decisions which disinherited an entire clan from its ancestral home.
The Applicant avers that the process culminating to the Minister's decisions pertaining the three parcels were marred with illegalities and improper procedures. Namely using a fictitious defendant named County Council of Koibatek instead of Baringo County Government. Collusion of defendants' witness as they gave a single-lined narrative pertaining to parcel 179, 180 and 180 all influenced by bad blood with the Kapkoimett family. According to the applicant, under section 4 (3) of the Fair Administrative Action Act, 2015, where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator is required to give the person affected by the decision a prior and adequate notice of the nature and reasons for the proposed administrative action and an opportunity to be heard and to make representations in that regard. The 1st Respondent failed to give the Applicant and his extended family an opportunity to be heard prior to making the decision. The Minister ignored issues of conflict of interest which had motioned the Minister's appeal stemmed from the bitterness and bad relation between then Adjudication Committee chairperson and the Applicants family.
The salient facts of the affidavit verifying the facts relied upon are that the exparte applicant resides on plot number 179 Aram Kindonin in Mogotio Sub- County within Baringo County Farming and keeping Livestock on the said land. On Tuesday 7th May 2024 the 3rd Respondent through its agents and servants brought down the fence of plot 179 and dug holes in preparation for a tree planting exercise despite the applicant's plea. That at all times the parcels of land numbered 179, 180 and 181 have been the ancestral property of the Kipkoimet Family. That in the 1960s when he was still in school the applicants father (deceased) who worked as forest officer instructed them to use small portion of land and keep the remainder as a conservancy.
The applicants family has since claimed and inhabited for sixty (60) years the southern part of Sorti forest, the eastern part of Mogotio Ward and Emining Ward which was adjudicated in Mogotio ward and the western part which is registered under Kikoirnet Tuitoek. The adjudication was done in the 1960s.
The applicants’ family made a decision to amalgamate the expansive land to make it easier to manage, the parcel being 179, 180 and 181 which lay claim having conserved. That when the adjudication process was being finalized they were summoned to verify the register and they noted errors on plot 179 because there was insertion of Sorti Primary School and Catholic Church.
The Adjudication Committee shortchanged the applicants’ family by dispossessing it of nearly 300 acres of the Aram Kindonin section despite the fact that they preserved the indigenous forest for many years. That his brother Solomon Koimett (now deceased) wrote a letter dated 3rd March 2009 to the Clerk County Council of Koibatek decrying erroneous allocation of land parcel 179 Aram/Kindonin in Koitebes location.
That the letter was accompanied with an attachment titled "Report of Reasons and Issues Concerning Dispute About Adjudication of Trust Land-Aram/Kindonin. The report stated in clear terms that the decision to disposes the Koimett family was actuated by malice of the Chairman of the Adjudication Committee owing to village familial disputes. Further, if the decision of the Adjudication committee was allowed to stand the Applicant and his extended family would be rendered landless because they had no alternative land.
On 9th April 2009, the District Land Adjudication & Settlement Officer Koibatek District wrote a letter to the Applicant reverting parcel 179 to their family. The matter died only to be resurrected sometime in 2011 by a new District Land Adjudication & Settlement Officer which promoted the Applicant to file appeal cases 163, 164 and 165 against the County Council of Koibatek. Again, the case died until the Applicant was summoned for a hearing of the appeal at Mogotio Deputy County Commissioner Office on 17th May 2023.
The defendant witnesses were the members of the Adjudication Committee which dispossessed the Applicant of their land. That the beneficiaries of the Estate of his Late Brother Solomon Koimett wrote a letter to the 4th Respondent clearly stating irregularities of the adjudication section and denial of a chance to make representation in the hearing as they had not been summoned to attend yet their father was actively involved in the case at Adjudication level. The 4th Respondent dismissed all the appeal cases. The applicant believes that the Minister's decision is tainted with malice, illegality and bad faith because he provided a comprehensive response of ownership of parcels 179, 180 and 181. It is unfair, unprocedurally wrong and excessive use of public office for the Respondents to issue such life-altering decisions without due considerations. The said decision is not only bad in law but ultra-vires. The exparte applicant claims to have honored summons. Tendered evidence to support any claim over the said parcels but the same have been ignored by the Minister. The Respondents' actions are therefore punitive and only aimed at punishing him and his family.
It was the Applicant's legitimate expectation that the Respondent, having issued formal government letter reverting the land to the Koimet family then should have had the cases had logically concluded as such. It is therefore unfair and punitive for the Respondent to renege and callously make unexplainable, unreasonable and unjustifiably decision against the Applicant. He is advised by his counsel which advise he verily believes to be true, that the Respondent's actions do fly on the face of Article 47 of the Constitution of Kenya 2010.
He is further advised as above that Article 47 of the Constitution of Kenya 2010 guarantees every person a right to an administrative action that is expeditious, efficient, Aimful, reasonable and procedurally fair. That the Respondent's decisions and or actions offends the principles set out in Article 47 Constitution of Kenya 2010. That the Respondent is denying him equal benefit and equal protection of the law as outlined under Article 27 of the Constitution of Kenya and also the right to tender evidence in support of his claim.
In response, Rael Ramkat, the D.C.C Mogotio Sub-County states that all Deputy County Commissioners in Kenya have been delegated with the powers to preside over the Appeals to the Cabinet Secretary under the Land Adjudication Act delegating the authority of the minister.
That she has been advised by the State Counsel in conduct of this matter that the Applicants have not demonstrated the impropriety of the decision of the Cabinet Secretary for lands. That the instant Application delves much into the merits and the demerits of the decision of the Cabinet Secretary, Lands.
That it is not true that the proceedings to the minister, now Cabinet Secretary Lands, have been rendered nugatory by virtue of a letter by the Director Land Adjudication Officer- Koibatek District as there exists no such letter. That the only letter dated 8th April, 2009 was a letter by the County Council of Koibatek confirming they had no objection to the reversion of the property and requesting the District Land Adjudication Officer to assist the family of Koimeit. That it is not true that the Applicants family was not represented during the hearing of the Appeals case.
According to the respondent, the total acreage of Land Parcel adjudication record numbers179, 180 and 181 subject matter in this suit covers over 300 acres of land. That it is not true that land parcel number 179 has been the ancestral land of the Applicants herein from over sixty years as alleged. That Land parcel number 179 is a forest area currently reserved as trust land in the name of the County Council of Koibatek.
In a supplementary affidavit, Essao Koimett states that the 4th respondent visited the site and saw for herself. He reiterates his statement that the 4th respondent ignored the weighty letter of Kiobatek’s District Land Adjudication and Settlement Officer dated 8th April 2009 which reverted the entire parcel No.179 to the Kapkoimet Family as she refused to admit the letter as applicants’ evidence during appeal. The land was reverted to Essao Koinett by the District Land Adjudication & Settlement Office Koibatek hence the matter could only be reviewed through an appeal or review. His family has claimed the conservancy since 1970 till todate. The forest is not a conservancy under County Government of Baringo.
The 3rd respondent filed grounds of opposition whose import is that this Honorable Court lacks jurisdiction to entertain this suit at the first instance as it offends, the provisions Of Section 30 of the Land Adjudication Act (Cap 284) and Section 8 of the Land Consolidation Act (Cap. 283) relating to ascertainment and recording of rights and interests inland.
That this Honorable Court lacks jurisdiction to entertain this suit as the Applicant has not obtained consent from the District Land Adjudication Officer pursuant to the provisions of Section 30 of the Land Adjudication Act and Section 8 of the Land Consolidation-Act before lodging this instant suit. The aapplication therefore according to the 3rd respondent, does not meet the threshold for judicial review and instead seeks to challenge the merits of decisions made by the Land Adjudication Committee and on the 1st Respondent.
That in the year, 2009, Land Adjudication Committee, ("the Committee") of the Aram/Kindonin Adjudication Section proposed that parcel No. 179 be allocated to the County Government of Koibatek and that On 3rd March, 2009 the Applicant wrote to the County, Council of objecting to the designation of Parcel 179 as a public utility and subsequent allocation to the County Council of Koibatek. Vide a letter dated 8th April 2009, the County Council of Koibatek wrote to the District Land Adjudication Settlement Officer and confirmed that the Committee, Town Pertaining; Markets and Works resolved to have the whole parcel No 179 revert to the Applicants -family. Consequently, it did not have an objection to having the property revert back to-the Applicants family.
The aforementioned position by the County Council of Koibatek Was discussed on 18th June, 2009 by the Land Adjudication Committee which upon considering the evidence presented together with the testimonies of witnesses given, made a determination on, 24th June, 2009. The Applicant being aggrieved by the aforementioned decision lodged an appeal to the Respondent which was considered and a determination rendered dismissing the Appeal. The 1st respondent further directed that the boundary be demarcated around the conservation area to ward off encroachment and further, area to remain as a conservation as earlier recorded.
From the foregoing, the applicant has not presented any reasonable or justifiable reason for this Honorable Court to interfere with the decision of the 1st respondent affirming the decision of the committee that parcel No. 179 is a public forest under the care of the 3rd respondent.
Further, the Applicant does not demonstrate that the decisions by both the Committee and the 1st Respondent are marred with illegality, irrationality and procedural impropriety. Consequently, the application should be dismissed with cost.
The applicant submits that the application is properly before the court as the court has jurisdiction to entertain the suit as the necessary statutory requirements and mechanism provided under the Land Adjudication Act have been finalized. The applicant argues that the Act is clear that any person aggrieved by the decision of the Ministers made under section 26 of the Act must follow the process under section 29 and appeal to the Minister. Once the Minister from the panel delegated to make the decision makes the determination, his order is final. That means the minister decision cannot be appealed, whether under the Act or in court. The only option is for the appellant to pursue a Judicial Review process provided under Articles 47 of the Constitution and the Fair Administrative Action Act 2015, a statute enacted pursuant to the Article 47 of the Constitution of Kenya.
The applicant argues that the 4th Respondent having delivered her Appeal rulings finalized the matter. On whether the decision was arrived at in the manner envisaged by the law, the applicant submits that the proceedings before the Minister were flawed with gross irregularities and un-procedural conducts by the panel sitting in Appeal to the Minister Cases No. 163/2022 (Plot No 179), 164/2011 (Plot No 180), 165/2011 (Plot No 181) and thus arriving at an unjust and unfair decision/finding.
The Applicant submits that the Minister's decisions pertaining parcel 179,180 and 181 to dispossess the Applicant and his extended family from their ancestral land is illegal, is unreasonable, irrational, is in bad faith, constitutes an abuse of power, is in breach of the rules of natural justice, evidentiary laws and is in breach of the Applicant's legitimate expectation. The Applicant is livid of applicability of judicial review in this matter. That is, it concerns itself with the procedure applied in arriving at the impugned decision and not the merits of the decision. The court will therefore confine itself with the decision-making process and not the merits of the decision. The Applicant frown at the decision-,making process in the Appeal of the Minister.
The applicant relies on the principles for Judicial Review set out in the landmark case of Republic —vs- Kenya National Examination Council Ex-parte Geoffrey Gathenji Njoroge & 9 Others [19971 eKLR where the Court of Appeal stated inter alia:
"That an order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of judicial review is not concerned with the merits of the case, but the decision — making process. In order for an applicant to succeed in an application for judicial review, he must satisfy the court that a public officer has acted procedurally, that his decision was unreasonable and that the impugned decision was illegal..."
Similarly, in the case of Municipal Council of Mombasa —vs- Umoja Consultants Ltd [20021 eKLR, the Court of Appeal held that:
"Judicial review is concerned with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a court of Appeal over the decider which would involve going into the merits of the decision itself, such as whether there was or there was not sufficient evidence to support the decision.
The Applicant submits that the Minister's decision failed to take into account relevant considerations such as that the Applicant's family has habited the contested land for more than 60 years. The Minister failed to take into consideration that the land in question is ancestral land of the Applicant the land having descended from the Kapkoimett family. The Minister ignored a letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel179 to the Applicant's family. The said correspondence in reply was prompted by a letter Solomon Koimett who Clerk of the County Council of Koibatek citing erroneous allocation parcel 179 Aram/Kindonin occasioned by spiteful vendetta of the Adjudication Committee Chairperson against the Koimett family. That taking into consideration of the serous allegations of conflict of interest of the Adjudication Chaiman plot 179 was reverted to the Applicant's family.
The Applicant submits that mandatory and material procedure was not complied with as the Minister ignored the letter of from the Clerk of Koibatek County Assembly through the District Land Adjudication & Settlement Office which had reverted the land to the Applicant. The Minister ignored the Applicant presentations alluding that the matter had since been resolved and the appeal rendered nugatory vide letter dated 8th April 2009 from The District Land Adjudication & Settlement Officer Koibatek District which reverted parcel 179 to the Applicant's family.
The Minister out of nowhere (from 2007) summoned the Applicant to a hearing on 17th May 2023. The hearing commenced on an illegality.
The Minister failed to furnish the Applicant with a Gazette Notice delegating her/his duties to Mogotio Deputy County Commissioner-
The Minister failed to furnish the Applicant with a Letter of Authority appointing one Mr. Anthony Tanui as the defendant. The defendant was Wrong1y joined as it ought to have been a representative from Baringo County Government. The Minister acted in bad faith by arguing the case for Catholic church who should have been called as interested parties but not defendant's witness.The Minister denied reasonable opportunity to the Applicant and Kapkoimett family at large to state their case ignoring the scale of ensuing decisions which disinherited an entire clan from its ancestral home specifically administratrix of the Estate of Solomon Kipruto Koimett. In view of the above, the decision-making process was tainted with illegality, and made without regard to the rules of natural justice. Ultimately, the appellant argues that the orders sought are available to be granted by the court.
The 3rd respondent argues that this court lacks the prerequisite jurisdiction to hear and determine this matter at the 1st instance as it offends Section 30 of the Land Adjudication Act Cap 284 and section 8 of the Land Consolidation Act (Cap 283) pertaining to ascertainment and recording of rights and interests in land. The 3rd respondent argues that the applicant did not obtain a consent in writing from the Adjudication officer which could have clothed the court with jurisdiction.
The third respondent argues that the applicant is challenging the decision of the 1st and 4th respondents concerning interest in the land rather than the decision making process hence the jurisdiction of the court has been improperly invoked. The 3rd respondent argues that the applicant has not met the threshold of grant of Judicial Review orders.
The 3rd respondent further argues that as to whether the threshold for grant of judicial review orders was met, the applicant was under a duty to establish that the Committee either lacked jurisdiction or the decision was marred with illegality, irrationality and procedural impropriety which they failed to do.
The Applicant exercised their right of appeal by lodging an appeal to the 1st Respondent which was considered and a determination rendered dismissing the Appeal, The 1st Respondent further directed that the boundary be demarcated around the conservation area to ward off encroachment and further, the area to remain as a conservation as earlier recorded.
The facts of this suit is that the due, fair, reasonable and procedural process was followed. The proceedings of the Appeal hearing dated 17th May 2023 provide evidence as to whether the necessary parties were heard and their input taken into consideration when making the final decision.
The 3rd respondent submits that the application does not meet the threshold for grant of judicial review orders sought. The Applicant has not presented any reasonable or justifiable reason for this Honorable Court to interfere with the decision of the 1st Respondent affirming the decision of the Committee that parcel number 179 is a public forest under the care of the 3rd Respondent. The 3rd respondent argues that the Judicial Review application should be dismissed with costs.
ANALYSIS AND DETERMINATION
The 1st issue to be determined by this court is whether it has the jurisdiction to determine this application. On this issue, it will be a misnomer to hold that consent of the Land Adjudication Officer was necessary for filing of the Judicial Review application because in judicial Review, the court will not determine the interest of the parties but the decision-making process of the respondents and therefore the court does not go into the merits of the decision. Moreover section 29 of the Land Adjudication Act Cap 284 of the Laws of Kenya which gives the minister the power to hear the appeal to the Minister and make a determination. This determination can only be challenged by way of judicial review. This court agrees with the holding in the case of Julia Kaburia vs. Kabeera & 5 Others [20071 eKLR, where the Court commenting on Section 30 of the Act, held:-
"The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. By Section 30 (1) (2), the jurisdiction of the court is ousted once the process of land adjudication has started until the adjudication register has been made final ...In our respective view, the consent envisaged by Section 30 to institute or continue with civil proceedings is not a consent to file a suit challenging the decision of the Land Adjudication Officer himself on the merits of his decision. Rather the consent is given to a person to file a suit or continue with a suit against persons who have a competing claim on the land under adjudication. This protection was availed to the parties herein by the appellate process which culminates with Section 29 of the Act;"(l) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-a delivering to the Minister an appeal in writing specifying the grounds of appeal; and sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
I do agree with the applicant that the court has the jurisdiction to entertain the application for judicial review because it does not seek to establish some interest to the applicant but whether the respondents acted legally, rationally and procedurally in reaching their impugned decision. In the context of judicial review, there are three main grounds for challenging the decision of a public body or authority:
On the merits of the application, this court observes that the 1st ground for grant of judicial review orders is based on the legality of the decision. This ground is based on the notion that the decision-maker has to act within his powers. The decision can only be quashed if the authority has acted outside their powers or in breach of the law. The decision may be unlawful due to a failure to follow a specific procedure, a misinterpretation of the law, or a failure to consider relevant factors. On illegality, I have considered the decision made by the 1st respondent and do find that the applicant has not proved any illegality as the 1st respondent had the power to make the same pursuant to the provisions of section 29 of the Land Adjudication Act Cap 284 of the Laws of Kenya. This court further finds that Gazette notice No.6854 of 13th September 2014 delegated the powers to hear and determine appeals and related duties and function under section 29 of the Land Adjudication Act Cap 284 to the Deputy County Commissioner of all sub Counties except the Sub- counties of Nairobi City County. The applicant has not demonstrated any illegality on the part of 1st respondent.
The second ground is irrationality also known as Wednesbury Unreasonableness. This ground is based on the idea that the decision-maker has acted irrationally or unreasonably. The decision may be challenged if it is deemed to be arbitrary, capricious, or without sound reasoning. On rationality, the decision by the 1st respondent was based on the law and facts that were presented to the 1st respondent. The 4th respondent considered the fact that the applicant had been allocated plot No.250 that boarders the conservation area but he wanted to take control of all the conservation area and had cultivated part of it for private use. He did not want any other member of the community to access the conservation area. There was a ground visit and it was found that the land is covered by a natural forest and therefore it was agreed that the area should remain under County Government of Baringo but not under an individual’s conservancy. This court finds that the decision was rational and reasonable as the land under forest cover did not belong to the applicant but to the community. The proper body to control the forest was the County Government of Baringo as the forest area was public land.
The 3rd ground is Procedural Impropriety which is based on the idea that the decision-maker has failed to follow the proper procedures or has acted in a way that is unfair or biased. This can include a failure to provide adequate notice, a failure to consider relevant representations, or a failure to provide adequate reasons for the decision. I do find that the applicant was given notice for hearing and was heard and a decision was made. This court is not supposed to go into the merit of the decision of the 1st and 4th respondent but the decisions making process. The applicant was heard by the decision maker and a decision was made. I do find no reason to impugn the decision of the minister on the basis of procedural impropriety. The upshot of all the above is that the application lacks merit and is dismissed with costs.