Republic v Town Clerk & another Ex-parte Muriithi Murage [2016] KEELC 963 (KLR)
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
#Key legal issues
#Whether the Preliminary Objection against the judicial review application had merit
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
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.
Whether the sub-division decision breached the rules of natural justice
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)
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.
Nature of the co-ownership of the suit plot
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
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.
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.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.Judgment entered for the applicant in terms of his Notice of Motion dated 19th March 2013
- 3.The 2nd respondent to meet the applicant's costs of the application
- 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.