Republic v The Commissioner of Lands & another; Paul Mariga & 192 others (Ex parte Applicant) (Judicial Review Miscellaneous Application 30 of 2010) [2014] KEELC 686 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the government cannot be forced to allocate settlement land unless a law actually requires it.
What this practically means
#Executive summary
#Key legal issues
#Availability of mandamus against the Respondents
Mandamus refused because the Respondents were not under any legal duty to allocate the Applicants land.
The Agriculture Act, which mandated establishment of settlement schemes, did not prescribe how beneficiaries were to be identified or impose an obligation to settle all persons found on government land. The identification of squatters was a policy and practice without statutory force, leaving the State discretion. Mandamus lies only to compel performance of a public duty imposed by law, not discretionary acts.
Availability of certiorari against the non-allocation decision
Certiorari refused; the decision was lawful, rational and procedurally fair.
The SFT lawfully acquired the land in 1998 before any Applicant occupied it. A participatory vetting process, with committees elected by squatters and village elders co-opted, produced a gazetted scheme of 1,252 plots. Criteria (development, continuous residence) were explained at a baraza, reasons for non-allocation were documented, and the Applicants failed to prove illegality, irrationality, procedural impropriety or absence of jurisdiction.
Entitlement to be settled on the scheme
The Respondents had no legal obligation to settle all claimants; the land could accommodate only 1,252 plots and the State was entitled to fix 5 acres per squatter.
The Government, having acquired the land through SFT, was entitled to determine the acreage per beneficiary and was not obliged to reduce it to 3 acres to accommodate all claimants. The Applicants' invasion of the property was itself improper, and those excluded must pursue resettlement through the National Land Commission under the Land Act.
Legal principles established
#- An order of mandamus can only compel a public officer to perform a duty the law requires; it cannot compel performance of acts left to discretion or not provided for by law.
- Certiorari can only issue where the decision complained of is tainted with illegality, irrationality or procedural impropriety.
- Persons excluded from a settlement scheme may petition the National Land Commission under the Land Act for resettlement on other land.
Court orders
#- 1.The Applicants' Notice of Motion dated 31st December 2010 is dismissed with no order as to costs
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v The Commissioner of Lands & another; Paul Mariga & 192 others (Ex parte Applicant) (Judicial Review Miscellaneous Application 30 of 2010) [2014] KEELC 686 (KLR)", Case Analysis (2014). Judicial Review Application (Notice of Motion dated 31st December, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/686/eng@2014-09-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.