1.The Applicants filed the Notice of Motion dated 23rd October 2023 under order 53 rule 3 (1) of the Civil Procedure Rules, 2010, Sections 8 & 9 of the Law Reform Acts, Cap 26 Laws of Kenya seeking the following orders;
(a)Certiorari to remove to this Honourable court and to quash proceedings and decision of minister dated 28/9/2022 as made in minister\'s appeal No. 357 of 2022 and communicated to the parties on 17/72023 appeal No. 357 of 2022 Tharaka Adjudication Section.
(b)That costs of this application be awarded to the applicants.
2.The application is supported by the Statement of Facts and verifying affidavit by the 1st Applicant. The Applicants were Respondents in appeal to Minister No. 357 of 2022 Jacob Kithuka Kiberenge & Edward Vs Mwendwa Kamakia, Jacob Mwikamba & Hellen Gacoka Kamakia and was heard by the 2nd Respondent. They complained that they were condemned unheard and that the 2nd Respondent contravened all known procedures.
3.The Ex parte Applicants claim that the suit parcels of land numbers 9715, 10222 & 10223 Kagundu/Tharaka form part of their ancestral land having been inherited from their father. They claim that at the commencement of the adjudication process, the land was recorded in their names, Mwendwa Kamakia, Jacob Mwikamba Kamakia and Hellen Gacoka Kamakia.
4.They had several cases with the 1st Interested party starting with the committee stage before appealing to the Minister for Lands.
5.The 1st Interested Party Kithunga Kiberenge filed an appeal to Minister No. 357 of 2022 regarding parcel Nos. 9715, 10222 & 10223 Kagundu/Tharaka Land Adjudication Section but the 2nd interested party did not appeal.
6.The Applicants challenge the proceedings before the Minister stating that the proceedings were conducted in an unprocedural manner in that:-
(i)Parties and witnesses were not sworn before giving evidence.
(ii)A new party was unilaterally, unprocedurally introduced to the proceedings and given land.
(iii)The Minister did not allow cross-examination of witnesses or parties.
(iv)The Minister did not look at the proceedings as she was obliged to do.
(v)The Deputy County Commissioner did not introduce herself, her clerk and committee members at the commencement of proceedings.
7.They further claimed that the verdict was not delivered procedurally but was supplied to the applicant upon request to the relevant authority on 17/7/2023 when it was forwarded to the director of the Land Adjudication Section and Settlement.
8.The Applicants contend that the 2nd respondent\'s decision is a monumental unmitigated breach of the rules of natural justice abuse and miss-use of statutory and Constitutional power, malicious, unreasonable, biased, grossly, illegal, oppressive and in breach of the applicant\'s constitutional right to a fair hearing and the 2nd respondent actions were tailored to deny the applicant justice are of no consequence and legal effect, invalid null and void.
The Replying Affidavit by the Interested Parties
9.The 1st Interested party Kithuka Kiberenge swore the replying affidavit on his behalf and behalf of the 2nd Interested Party. He stated that the suit parcels of land emanated from land parcel no. 9855 which at the committee stage was awarded to one Edward, 9856 which was awarded to one Maturu Mutegi, his uncle, and 9715 awarded to one Gacoga Kamakia.
10.The committee gave a verdict that the parcels be subdivided to unknown people who are now the applicants in this case but disputed the verdict and appealed to the minister appeal No. 357 of 2022 which he claimed was yet to be determined.
11.He stated that the land dispute had earlier been handled by the tribunal between his father Kiberenge Mutegi versus Nthiga Iragi being land case no. 76 of 1994 and the land was awarded to his father and a court ruling issued on 9th August 1995. He stated that the applicants were present and aware of the matter and neither showed interest nor participated in the proceedings.
12.The Interested Parties claim that the suit properties parcel numbers 9715, 10222 and 10223 Kagundu/Tharaka do not form part of the applicants’ ancestral land as claimed but that they belong to them.
13.They stated that when the adjudication process commenced the land was recorded as 9855 & 9856 belonging to Mutugu Kiberenge and Maturu Mutegi respectively and that KITHUKA KIBERENGE filed a case with land adjudication as claimed because the land was to be subdivided which was against his will and that the committee members who could make the right judgement upon the parcel had been chased away from the case.
14.They denied the Applicant\'s contention that the objector did not file a case for nos 9715, 10222 & 10223 because the objector was waiting for the verdict from the minister. They denied that the proceedings were conducted in an unprocedural manner or that the witnesses were not sworn before giving evidence.
15.The Interested Parties confirmed that the arbitrator knew her role in the case and she knew when cross-examination was necessary. He also stated that the minister was expected to rely on the former proceedings to make an independent ruling/verdict.
Applicant’s Submissions
16.Counsel for the Applicants raised several issues for determination being whether it is mandatory for parties and witnesses to swear when testifying in proceedings, whether it was procedurally correct for the Minister to unilaterally introduce a party and award him land, whether it was procedurally correct for the Minister to deny a party cross-examination during proceedings, whether it was procedural for the Minister to ignore previous proceedings and whether judicial review orders should be issued.
17.On whether parties and witnesses must swear when testifying in proceedings Counsel relied on the provisions of Section 12 (1) of the Land Adjudication on the requirement to follow the procedure followed in civil cases and Section 10 on the power given to the Land Adjudication and Settlement Officer to administer oaths. Counsel further relied on the provisions of the Evidence Act and Section 17 of the Oaths and Statutory Declarations Act to support the submission that it is a legal requirement to administer an oath or affirmation to a party or witness giving evidence.
18.Counsel also submitted that denial of an opportunity to cross-examine witnesses was a violation of Article 50 of the Constitution of Kenya on the right to a fair hearing. Counsel relied on the case of Pinnacle Projects Ltd vs Presbyterian Church of East Africa which was cited in Republic Vs Sub-County Commissioner Mwingi Ex parte Musembi Mbai in stating that procedural fairness is deeply ingrained in our administration of the justice system.
19.Counsel further cited the case of Haron Odhilo V Republic(2020) eKLR citing the case of Tedium Rodgers Leneni Mzungu & Another V Republic (2007) eKLR where failure to allow cross-examining a witness was found to be fatal to the case.
20.Counsel also submitted that it was unprocedural for the 2nd Respondent to add another party to the suit as an appellant when the said party had not been part of the appeal and then proceed to award him land stating that the decision was irrational and unprocedural citing the case Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA
21.Counsel further submitted that failure to consider previous proceedings was fatal to the decision of the 2nd Respondent. He cited the cases of Matwanga Kilonzo v District Commissioner, Kitui & Another [2021] eKLR and Republic vs Special District Commissioner & another Machakos Civil Miscellaneous 124 of 2004 [2006] eKLR
Submissions by the Interested Parties
22.The Interested Parties case was argued by the 1st Interested Party Jacob Kithuka Kiberenge and he submitted that he was born in 1980 on land parcel 9855. His father did a case with Nthiga Iragi in 1992 and his father was given the land by the court. They lived on the land until his father died in 2013 and he left his children on the land. He stated that the applicants complained about the land in 2018 when survey people came to subdivide the land. As a result, the Adjudication Officers decided that the land be given two numbers.
23.He further stated that the applicants instituted proceedings at the committee but they challenged the committee members selected and they were removed and the case was heard by people who had not known about the land. They went to the land\'s office and the land was subdivided other numbers were given 9715, 10222 and 10223 but they were not aware and were not informed. They appealed to the minister and after hearing the minister ruled that the land was to be sub-divided again.
Analysis and Determination
24.The court has considered the application herein, the replying affidavits and submissions by the parties and finds that the issues for determination may be consolidated into the question of Whether the proceedings and decision in the appeal before the 2nd Respondent was unprocedural, unfair, illegal, and/or in contravention of the provisions of the Fair Administrative Actions Act.
25.Counsel for the Applicants raised several issues for determination being whether it is mandatory for parties and witnesses to swear when testifying in proceedings, whether it was procedurally correct for the Minister to unilaterally introduce a party and award him land, whether it was procedurally correct for the Minister to deny a party cross-examination during proceedings, whether it was procedural for the Minister to ignore previous proceedings and whether judicial review orders should be issued.
26.On whether parties and witnesses must be sworn before testifying Section 10 (1) of the Land Adjudication Act provides that:
The adjudication officer shall have jurisdiction in all claims made under this Act relating to interests in land in the adjudication area, with power to determine any question that needs to be determined in connection with such claims, and for that purpose, he shall be legally competent to administer oaths and to issue summonses, notices or orders requiring the attendance of such persons or the production of such documents as he may consider necessary for the carrying out of the adjudication.
27.Further, Section 12 (1) of the Land Adjudication Act provides that;
In the hearing of any objection or petition made in writing, the adjudication officer shall make or cause to be made a record of the proceedings, and shall, so far as is practicable, follow the procedure directed to be observed in the hearing of civil suits, save that in his absolute discretion he may admit evidence which would not be admissible in a court of law, and may use evidence adduced in another claim or contained in any official record, and may call evidence of his own accord.
28.Further, Section 17 (a) of the Oaths And Statutory Declarations CAP 15 Laws of Kenya provides for persons by whom oaths and affirmations are to be made and states
Subject to the provisions of section 19, oaths or affirmations shall be made by
(a)all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
29.From the foregoing provisions of the law, it is clear that a person giving evidence during proceedings in the appeal to the Minister was required to take oath or affirmation. In the Court\'s view, the above provisions may be applied to proceedings during the hearing and determination of an appeal to the Minister. The court has looked at the proceedings before the 2nd Respondent and confirmed that indeed none of the parties and their witnesses were sworn or took oath before testifying.
30.Counsel also submitted that denial of an opportunity to cross-examine witnesses was a violation of Article 50 of the Constitution of Kenya on the right to a fair hearing. Article 50 (1) provides that;
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
31.On the question of failure to allow cross-examination of a witness, the Court of Appeal for Eastern Africa in Edward S/o Msenga Vs. Reginam, (1942) EA CA 553 held that:-
“The failure to give the appellant an opportunity to cross-examine the second accused was the denial of a fundamental right which was fatal to the conviction on the first count.”
32.The Court went on to state that;
\"We find it impossible to say that the refusal by the learned trial Magistrate to allow the appellant to cross-examine the second accused did not prejudice the appellant in his defence and did not result in a miscarriage of justice. The evidence given by the second accused undoubtedly tended to incriminate the appellant, particularly his evidence that the appellant did not hand over the money to him for, if the appellant did not hand over the money, the only reasonable inference which could be drawn was that the appellant had stolen the money himself. But if doubt were thrown on the truth of the second accused\'s testimony, a reasonable doubt might well have been raised as to the guilt of the appellant. It was, therefore, clearly in the interests of justice that the appellant should have been given an opportunity to test by cross-examination the truth of the evidence given against him by the 2nd accused.
33.A look at the proceedings before the 2nd Respondent shows that none of the parties was cross-examined and neither were their witnesses. It is noted that there was vibrant cross-examination when the dispute was heard before the other tribunals that is the Committee, Arbitration Board and the Land Adjudication and Settlement Officer. The conclusion that the court arrives at is that the parties were indeed denied an opportunity to cross-examine the witnesses and this was a denial of a fundamental right which was fatal to the proceedings.
34.The court agrees with Counsel for the Applicant that procedural fairness is deeply ingrained in our administration of the justice system and failure to adhere to the same in this case amounted to denial of a fair hearing contrary to Article 50 of the Constitution of Kenya and denial of fair administrative action in contravention of Article 47 of the Constitution of Kenya.
35.Counsel for the Applicants submitted that it was unprocedural for the 2nd Respondent to add another party to the suit as an appellant when the said party had not been part of the appeal and then proceeded to award him land stating that the decision was irrational and unprocedural. The court has considered the broad grounds on which the Court exercises its judicial review jurisdiction as stated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 as follows:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.\"
36.The Court has looked at the Form of Appeal to the Minister attached to the Interested Parties’ replying affidavit and noted that the person who was the appellant in the appeal to the Minister was the 1st Interested Party, Jacob Kithuka Kiberenge while the Respondents are the three Applicants herein. The 2nd Interested Party Edward Mutugu Kiberenge was not an appellant or a party to the appeal. His name first appeared on the title to the proceedings and judgement of the 2nd Respondent. No reasons were given by the 2nd Respondent herein for designating him the title of an appellant and awarding him part of the land in dispute. The Court finds that the addition of the said party and the award of land to him while not being a party to the appeal was unprocedural and illegal.
37.
38.Counsel further submitted that failure to consider previous proceedings was fatal to the decision of the 2nd Respondent. The court has considered the findings and judgement of the 2nd Respondent and observed that indeed there is no mention that the 2nd Respondent, in arriving at her decision considered previous proceedings before the Land Adjudication Committee, the Arbitration Board and the Objection proceedings.
39.The mandate of the Minister or his official in conducting appeal proceedings under Section 29 of the Land Adjudication Act was set out in the case of Republic vs Special District Commissioner & another Machakos Civil Miscellaneous 124 of 2004 [2006] eKLR where it was held that;
“In conclusion on this issue, this court sees a clear procedure laid down by Section 29(1) aforesaid to be followed when a District Commissioner is conducting and determining an appeal under the Section. That is to say, the District Commissioner will receive a written appeal containing grounds of appeal together with the Land Adjudication Officer\'s record and will then determine the appeal upon those grounds of appeal. It would be unreasonable to think that the Legislature intended that the aggrieved party would file the grounds of appeal to the Minister without those grounds being intended to serve any purpose in helping the District Commissioner arrive at a fair and just decision. In that regard, I am aware of the prevailing popular procedure under which the District Commissioner, before he makes his decision, records fresh evidence from the parties and their witnesses. Such procedure has all along been tolerated on the basis that Section 29 (1) aforementioned gives the District Commissioner freedom to use any lawful method to arrive at his decision. While I am not presently prepared to state that the recording of fresh evidence is not authorized by the Act, I am on the other hand clear in my mind that the District Commissioner will not choose to rely on such freshly recorded evidence alone without regard to the grounds of appeal filed by the appellant. That is to say, that the evidence he records should be considered along with the evidence in the District Land Adjudication Officer\'s records of proceedings and ruling that is appealed from, and on which the grounds of appeal arise. On the other hand, my understanding of Section 29 (1) aforesaid, is that there is no part of that section that authorizes the taking of fresh evidence by the District Commissioner before he arrives at the decision. This means that he has open room to do so and is in fact expected to rely on those records to come to his decision except where he needs particular additional evidence for clarification.\"
40.The above position was also taken in the case of Matwanga Kilonzo v District Commissioner, Kitui & Another [2021] eKLR where it was held that:
“The Minister’s mandate under Section 29 of the Act is to consider the grounds of appeal raised by any person appealing against the decision of the Land Adjudication Officer, and upon considering the record of the Land Adjudication Officer, arrive at an independent decision. Indeed, just like what happens in an appellate court, the Minister need not take fresh evidence while dealing with the appeal, although he may do so to seek clarification on certain issues. However, he must consider the grounds of appeal and the evidence that was adduced before the Land Adjudication Officer before making his decision. The said decision must give reasons as to why he agrees or disagrees with the decision of the Land Adjudication Officer…... The 1st Respondent made the above finding after hearing the parties herein, and after considering the decision of the Land Adjudication Officer. Considering that the 1st Respondent heard both parties and considered the proceedings of the Land Adjudication Officer, I am not convinced that the 1st Respondent was biased while arriving at his decision.”
41.The Court has considered the said previous proceedings and noted that indeed if the 2nd Respondent had considered the said proceedings she would have noted that the subdivision of the suit land alluded to in the judgement in the appeal to the Minister had already been effected early in the proceedings and in particular during the hearing before the Land Adjudication Committee.
42.From the proceedings prior to the appeal to the Minister, the court has gathered that the suit parcels of land numbers 10223, 10222 and 9715 were initially curved out of land parcels 9855, 9856 and 9715 respectively. The proceedings before the Committee show that the initial parcel of land 9855 was subject to Committee case number 221 between Edward Mutugu and Jacob Mwikamba Kamakia and the committee decided that a new parcel of land No. 10223 to accommodate Jacob Mwikamba Kamakia be created. In this case, the defendant was left with parcel number 9855
43.The proceedings before the Committee also show that the initial parcel of land 9856 was subject to Committee case number 220 between Mwendwa Kimakia versus Maturu Mutegi for Jacob and the committee decided that a new parcel of land No 10222 to accommodate Mwendwa Kimakia be created. In this case, the defendant was left with parcel number 9856
44.From the records, the Ex parte Applicants did not challenge the subdivisions and their awards of land parcels 10222, 10223 and 9715. They also did not challenge the finding that the Interested Parties were left with parcels 9855 and 9856.
45. The above awards were upheld and confirmed throughout the proceedings and decisions of the Adjudication Committee, the Arbitration Board and the Objection proceedings.
46.The 2nd Respondent decided that the three parcels of land 10222, 10223 and 9715 were to be shared between the Ex parte Applicants and the Interested Parties for both parties for they all have a right of ownership of the disputed land. The reasoning was that the families of the Applicants and Interested Parties had lived together and shared the land as friends for a long time. That dispute started when their parents died and the clan had resolved the dispute by dividing the land among the two families but the Kiberenge family never respected the verdict.
47.In the court\'s view and after considering the proceedings before the other adjudication tribunals the question of the common usage of land and division of the land used in common between the Ex parte applicants and the Interested Parties was heard and determined at all the stages and the parcels numbers 9855 was divided to create 10223 and 9856 was subdivided to create 10222.
48.In the court’s view, it is more probable than not that the 2nd Respondent did not consider the previous proceedings in arriving at her decision. In the court\'s further view, the 2nd Respondent\'s failure to consider the previous proceedings before the land adjudication tribunals arrived at a decision that was irrational and unreasonable and that was arrived at using an improper procedure.
49.For the foregoing reasons, the court finds that the decision of the 2nd Respondent violated the Applicant\'s right to a fair hearing and to a fair administrative action under Articles 50 and 47 of the Constitution of Kenya and the Fair Administrative Actions Act CAP 71 Laws of Kenya.
50.The court thus allows the Notice of Motion dated 23rd October 2023 and makes the following order;
(a)An order of Certiorari be and is hereby issued to remove to this Honourable court and to quash proceedings and decision of the Minister dated 28/9/2022 as made in Minister’s appeal No. 357 of 2022 Tharaka Adjudication Section and communicated to the parties on 17/7/2023.
(b)Costs of this suit are awarded to the Applicants to be paid by the Respondents.
Dated, Signed and Delivered at Kitui this 3rd Day of October 2024
L. G. KIMANI
JUDGE
Ruling read in open Court and virtually in the presence of
Kinyua for the Ex Parte Applicant
No attendance for the Respondents
Jacob Kithuka Kiberenge 1st Interested Party in person
Edward M. Kiberenge 2nd Interested Party in person