Mombasa Technical Training Institute v Agnes Nyevu Charo & 108 Others [2014] KECA 138 (KLR)
The bottom line
#The Court of Appeal confirmed that long occupation of public land creates no rights, and judicial review to quash land allocations must be filed within six months.
What this practically means
#Executive summary
#Key legal issues
#Time limit for leave to apply for certiorari
The application for leave filed on 11th September 2009 was long out of the six-month period from the allocations of 1997 and 2007; the certiorari orders were incompetent and the respondents' counsel properly conceded this.
Order 53 Rule 2 of the then Civil Procedure Rules barred grant of leave for certiorari where the application is made later than six months after the proceeding. Following Aga Khan Education Service Kenya v Republic, the burden lay on the applicant for leave to satisfy the condition. Leave here was obtained on 11th September 2009, long after the expiry of the period from the 1997 and 2007 allocation decisions, so the certiorari orders could not stand.
Availability of mandamus
Mandamus could not issue to cancel the letter of offer or compel allocation; the prayer was a certiorari in disguise, and without quashing the allocation mandamus was unavailable.
Citing Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge, the court restated that mandamus compels performance of a public duty but cannot quash what has already been done; that is certiorari's function. The prayer to cancel the 1997 letter of offer was a disguised certiorari, itself time-barred, and in the absence of a quashed allocation an order compelling a fresh offer to the respondents could not issue.
Legitimate expectation arising from long occupation of public land
No legitimate expectation could arise from unlawful occupation of unalienated government land; the respondents' long occupation conferred no rights and did not trigger natural justice.
Under the Government Lands Act, unlawful occupation of unalienated government land is an offence under section 142. Since the respondents' occupation (if any) was unlawful, no rights could flow from it. Distinguishing Kunste Hotel, where an assurance had been given, the court held that creating such a precedent would encourage squatter invasion of government land and amount to introducing adverse possession into government land, contrary to public policy. Natural justice applies only to affected legal rights or interests.
Validity of the allocation decision-making process
The allocation and grant to the appellant, a public institution, followed a lawful process and no ground for judicial review was made out.
The suit property was reserved for a Technical School before allotment; the allotment of 26th March 1997 was revised in December 1997 following hiving off of a portion for Allidina Visram Secondary School, and the grant of April 2009 issued under delegated powers under sections 3(a) and 7 of the Government Lands Act. Judicial review issues only on breach of law, excess of jurisdiction or departure from natural justice; none was discerned, and the judge erred in issuing the orders.
Legal principles established
#- Leave to apply for an order of certiorari must be sought within six months of the decision sought to be impugned, and the burden is on the applicant for leave to satisfy that condition
- An order of mandamus only compels performance of a public duty; it cannot quash a decision already made - only certiorari can quash
- No legitimate expectation of allocation of government land can arise from occupation that is unlawful under statute, however long continued
- Rules of natural justice apply only where the legal right, liberty or interest of an aggrieved party is affected
Court orders
#- 1.Appeal allowed
- 2.Orders made by the High Court on 15th March 2010 set aside
- 3.Substitution of an order dismissing the respondents' motion dated 11th September 2009
- 4.Each party to bear their own costs in the lower court as well as in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Misc. C. Appl. No. 395 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution and the Civil Procedure Act (appeal against judgment and order of the High Court in a judicial review application); not an Article 163(4) appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa Technical Training Institute v Agnes Nyevu Charo & 108 Others [2014] KECA 138 (KLR)", Case Analysis (2014). Civil Appeal No. 282 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/138/eng@2014-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.