Kimuri v Commissioner of Lands & 5 others
The bottom line
#Kenya's Court of Appeal refused to cancel a land title because the applicant took Kshs 300,000 and helped the survey, so he can't complain later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in holding that an order of certiorari is discretionary and would not issue even if the 1st respondent had violated the law
- 2.Whether the judge erred in finding procedural impropriety by the respondents yet failing to grant the orders sought
- 3.Whether the judge failed to ensure parity of reasoning with the related appeals (Civil Appeals 60, 61 and 62 of 2015)
Key legal issues
#Discretionary nature of certiorari and conduct of the applicant
Certiorari would not issue because the appellant received Kshs 300,000 from the 5th respondent, allowed survey works, and never refunded the money, showing acquiescence in the alienation
The High Court found the appellant facilitated the surveyor's access to the suit parcel and was therefore aware the 5th respondent had purchased from the 4th respondent. Given that judicial review reliefs are discretionary, the court held the discretionary remedy should be withheld from a party who participated in and benefited from the very process he later sought to impugn.
Parity of reasoning with related appeals
The judge's departure from the related appeals was justified by the distinct fact of the Kshs 300,000 payment and non-refund; the appeal lacked merit
The appellant argued the judge failed to ensure parity of reasoning with Civil Appeals 60, 61 and 62 of 2015 where certiorari had issued. The court held the judge gave reasons for departing - the payment and facilitation of survey - and that the conclusions in the related appeals, including absence of procedural impropriety by the State respondents, applied here.
Legal principles established
#- Judicial review reliefs, including certiorari, are discretionary and equitable; a party who has facilitated or acquiesced in the impugned process cannot obtain them
- Conclusions reached in related appeals on identical facts and law apply equally to a related appeal raising the same issues
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Misc. Application No. 4 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution/statute (not expressly stated in the judgment)
Relief refused
#Order of certiorari quashing registration of Nanyuki Municipality Block 12/122 in favour of the registered owners
Judicial review reliefs are discretionary; the appellant received Kshs 300,000 from the 5th respondent, facilitated survey works, and did not refund the money
Costs
We make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
from the circumstances of this case and judicial review reliefs being discretionary, the same would not issue in favour of the appellant.
Having facilitated the survey, he cannot now turn around and find fault with the subsequent allocation/registration.
Accordingly, the appellant's appeal is without merit and the same is hereby dismissed in its entirety. We make no order as to costs.
Issues in the judgment
#Typographical error in the date of the High Court judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimuri v Commissioner of Lands & 5 others", Case Analysis (2022). Civil Appeal 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/957/eng@2022-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.