Margaret Waithira Njihia (Suing as legal representative of the estate of the Late Francis Njihia Gitatu ( Deceased) v County Government of Nakuru & another [2016] KEELC 831 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the decision reverting the plot was illegal, irrational or procedurally improper
The decision was neither illegal nor irrational; it corrected a mistake, as the plot had been wrongly repossessed since the previous allottee had no rent arrears
The facts were undisputed: the plot was repossessed and re-allocated despite there being no default in rent. The court held the respondent, as allotting authority, had jurisdiction over allotment and revocation. Correcting the error prevented the interested party from being wrongfully deprived of her property. No illegality, unreasonableness or irrationality was demonstrated, and the applicant had been given an opportunity to be heard.
Whether the applicant's right to property under Article 40 was infringed
No breach of Article 40; the plot remained county land without a title and the reversion prevented wrongful deprivation of the interested party's property
The court held the plot had no title and remained under the County Government, so the respondent could make decisions on its allotment and revocation. The ex-parte applicant obtained the allocation by mistake; quashing the reversion would wrongfully deprive the interested party. The applicant's remedy lies in compensation, not in quashing the decision.
Compensation for the ex-parte applicant's developments
The respondent ought to compensate the applicant for the fair value of what was lost, but that claim cannot be determined in judicial review proceedings
The court found the late Njihia acted in good faith, obtained planning approval, developed the plot, and paid rates. The fault lay with the respondent and its predecessor, who should compensate for the fair value of what was lost. However, the motion was one for certiorari, not compensation, so the applicant was left free to file a separate suit.
Legal principles established
#- The allotting authority has jurisdiction to decide on allotment and revocation of plots within its mandate; judicial review is not a suit for compensation, and a party aggrieved by the consequences of a corrected administrative error may file a separate suit for compensation
Court orders
#- 1.The motion for certiorari is dismissed
- 2.No orders as to costs
- 3.Liberty to the ex-parte applicant to file suit for compensation if none is forthcoming
- Jurisdiction invoked
- Judicial review jurisdiction (motion for certiorari) under the applicable law; supervisory review of the respondent's decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Waithira Njihia (Suing as legal representative of the estate of the Late Francis Njihia Gitatu ( Deceased) v County Government of Nakuru & another [2016] KEELC 831 (KLR)", Case Analysis (2016). Judicial Review Motion filed 20 March 2015, amended 15 May 2015 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/831/eng@2016-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.