Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedJudicial Review Application (Notice of Motion dated 19th March 2013)· [2016] KEELC 963 (KLR)

Republic v Town Clerk & another Ex-parte Muriithi Murage [2016] KEELC 963 (KLR)

High Court of Kenya
22 April 2016
3,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court quashed a council's decision to sub-divide jointly owned land because one owner was never invited to be heard before the decision was made.

What this practically means

#

Executive summary

#
The applicant, Muriithi Murage, moved the High Court by Notice of Motion seeking certiorari to quash the minute of the Municipal Council of Kerugoya-Kutus Town Planning, Works and Housing Committee (MIN TPW & H 34/2012, 13th December 2012) sub-dividing plot No. 250/92 Kerugoya into two portions, and an order of prohibition against further sub-division. He claimed he had been allocated the plot in 1968 and had developed it without contribution from the interested party, his brother, with whom he was jointly registered since 2012; he was neither consulted nor invited to the meeting that approved the sub-division. The respondents filed a Preliminary Objection (non-compliance with Order 53, dissolution of municipalities under Article 176(1), and a allegedly defective verifying affidavit) but did not otherwise participate. The court dismissed the Preliminary Objection, holding the transitional provisions of Section 59 of the Urban Areas and Cities Act sustained the suit against the former municipal council, and the heading defect was a curable typographical error. On the merits, the court applied the principle that judicial review concerns the decision-making process, found the plot held in joint tenancy per Mukazitoni Josephine v Attorney General, and held that the failure to hear the jointly-owning applicant breached the rules of natural justice, Articles 47(1) and 50(1). Certiorari issued quashing the impugned minutes; prohibition was refused as unnecessary once the decision was quashed. Judgment was entered for the applicant, with the 2nd respondent to bear his costs.

Key legal issues

#
01

Whether the Preliminary Objection against the judicial review application had merit

Holding

The Preliminary Objection was dismissed; leave had been granted, service was effected, the respondents continued as legal entities under transitional provisions, and the heading error was a curable typographical error

Reasoning

Leave was granted by Githua J on 7th March 2011 when the Local Government Act was still in force; Section 59 of the Urban Areas and Cities Act permits continuation of litigation by former local authorities; the verifying affidavit was deponed by the applicant himself, not a stranger; and the heading defect was curable under Article 159(2) of the Constitution.

p. 3
02

Whether the sub-division decision breached the rules of natural justice

Holding

Yes - the applicant, a joint owner, was not invited to or heard at the meeting that approved the sub-division, breaching audi alteram partem and Articles 47(1) and 50(1)

Reasoning

The applicant and interested party are joint registered owners since 2012. The minutes of 13th December 2012 show the applicant was not among those present. The respondents filed no replying affidavit to rebut the averment that he was not consulted. Given the plot's substantial development, fairness required that he be heard before the decision was made.

p. 6
03

Nature of the co-ownership of the suit plot

Holding

The plot is held in joint tenancy, so dispositions may only be made by all co-owners jointly under Section 91(3) of the Land Registration Act

Reasoning

The certificate of lease does not specify the type of tenancy. Applying Mukazitoni Josephine v Attorney General, registration in more than one name without a contrary entry is deemed joint tenancy, attracting Section 91(3) of the Land Registration Act requiring joint dispositions.

p. 4

Legal principles established

#
  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • Where property is registered in more than one name without indication of tenancy, it is deemed held in joint tenancy
  • An unchallenged averment in an affidavit stands un-rebutted and must be believed

Court orders

#
  1. 1.An order of certiorari removing into the High Court and quashing the minute of the Municipal Council of Kerugoya-Kutus Town Planning, Works and Housing Committee held on 13th December 2012 (MIN TPW & H 34/2012) sub-dividing plot number 250/92 Kerugoya into portions A and B and awarding 250/92 A to Muriithi Murage and 250/92 B to Samuel Njiraini Murage
  2. 2.Judgment entered for the applicant in terms of his Notice of Motion dated 19th March 2013
  3. 3.The 2nd respondent to meet the applicant's costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53(1), 53(4)
  • Constitution of KenyaArticle 176(1)
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 50(1)
  • Local Government Act (repealed)Sections 12, 134, 177(1)(a)
  • County Government Act
  • Urban Areas and Cities Act (CAP 275)Section 59
  • Land Registration ActSections 91(1), 91(3)

Cases cited (10)

  • Owners of the Motor Vehicle 'Lillian S' v Caltex Oil (Kenya) Limited
    (1989) K.L.R 1
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Pastoli v Kabale District Local Government and Others
    (2008) 2 E.A 300
  • Council of Civil Unions v Minister for the Civil Service
    1985 AC 2
  • An Application by Bukoba Gymkhana Club
    1963 E.A 478
  • Mukazitoni Josephine v Attorney General
    2015 eKLR
  • Onyango Oloo v Attorney General
    1986–1989 E.A 456
  • Peter Okech Kadamus v Municipal Council of Kisumu
    (1985) K.L.R 954
  • Republic v Electricity Commissioner
    1924 1 K.B 171
  • Kenya National Examination Council v Republic – Ex-parte Geoffrey Gathenji & Others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Orders of certiorari and prohibition under Order 53 of the Civil Procedure Rules; leave granted by Githua J on 7th March 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Town Clerk & another Ex-parte Muriithi Murage [2016] KEELC 963 (KLR)", Case Analysis (2016). Judicial Review Application (Notice of Motion dated 19th March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/963/eng@2016-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.