Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 282 of 2010· [2014] KECA 138 (KLR)

Mombasa Technical Training Institute v Agnes Nyevu Charo & 108 Others [2014] KECA 138 (KLR)

Court of Appeal of Kenya
19 June 2014
4,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

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

#
The appellant, Mombasa Technical Training Institute, appealed against a High Court decision (Ojwang, J.) granting the 1st to 107th respondents judicial review orders: prohibition of registration of title, certiorari quashing the letters of offer of 1997 and 2007 and the grant of April 2009, and mandamus cancelling the letter of offer, over land LR No. MN/1/14710 in Mombasa. The respondents, long-time occupants claiming to be landless squatters, asserted a legitimate expectation of allocation. The Court of Appeal held that leave for certiorari granted on 11th September 2009 was long outside the six-month window under Order 53 Rule 2 of the Civil Procedure Rules, as respondents' counsel conceded, so the certiorari orders were incompetent. It further held that mandamus cannot quash what has already been done; the prayer to cancel the letter of offer was a disguised certiorari. On legitimate expectation, the court held that occupation of unalienated government land in violation of section 142 of the Government Lands Act could generate no legitimate expectation, however long, since natural justice protects only legal rights and interests; legitimising squatter occupation would encourage invasion of public land and amount to introducing adverse possession into government land. The allocation and grant to the appellant, a public institution, followed a lawful process of reservation, allotment and revision, and disclosed no breach of law, jurisdiction or natural justice. The court allowed the appeal, set aside the High Court orders of 15th March 2010, dismissed the respondents' motion, and directed each party to bear their own costs in the lower court and the appeal.

Key legal issues

#
01

Time limit for leave to apply for certiorari

Holding

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.

Reasoning

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.

p. 5
02

Availability of mandamus

Holding

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.

Reasoning

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.

p. 5
03

Legitimate expectation arising from long occupation of public land

Holding

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.

Reasoning

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.

p. 6
04

Validity of the allocation decision-making process

Holding

The allocation and grant to the appellant, a public institution, followed a lawful process and no ground for judicial review was made out.

Reasoning

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.

p. 7

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. 1.Appeal allowed
  2. 2.Orders made by the High Court on 15th March 2010 set aside
  3. 3.Substitution of an order dismissing the respondents' motion dated 11th September 2009
  4. 4.Each party to bear their own costs in the lower court as well as in the appeal

Authorities

#

Legislation

  • Law Reform ActChapter 26
  • Civil Procedure Rules (former edition)Order 53 Rule 2
  • Government Lands Act (Cap. 280, now repealed)Section 3(a) as read with section 7
  • Government Lands Act (Cap. 280, now repealed)Section 142
  • Registration of Titles ActGeneral (title challenge provisions)

Cases cited (12)

  • Wilson Oslo v John Ojiambo Ochola & Another
    [1996] eKLR
  • Kenya National Examination Council v R
    C.A. Nbi No. 266 of 1996 (UR)
  • Aga Khan Education Service Kenya v R & Others
    [2004] 1EA 1
  • Sultan Hasham Lalji & 2 Others v Ahmed Hasham Lalji & 4 Others
    Civil Appeal No. 3 of 2003 (UR)
  • African Line Transport Company Ltd v The Attorney General
    C.A. No. 159 of 2007
  • Commissioner of Lands v Kunste Hotel Limited
    [1995-1998] 1 EA 1
  • Council of Civil Service Unions v Minister for the Civil Service
    [1985] AC 374
  • R v Devon County Council ex parte Baker & Another
    [1995] 1 All ER 73
  • Regina v Director of Public Prosecution ex parte Kebilene & others
    WLR 12th November, 1999
  • Ragina v North and East Devon Health Authority ex parte Coughlan
    [2000] 2 WLR 622
  • Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & others
  • Nairobi Permanent Market Society & others v Salima Enterprises & others
    [1995-1998] 1 EA 232
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.