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ELCAllowedJudicial Review (Notice of Motion dated 12th October 2016)· [2017] KEELC 501 (KLR)

Republic v Senior Resident Magistrate, Winam Law Court & another Ex-Parte Judith Akinyi Omondi [2017] KEELC 501 (KLR)

Environment and Land Court
6 December 2017
SKS.M. Kibunja
636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even a registered landowner cannot use secret court orders to evict people from land without first letting them be heard in court.

What this practically means

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Executive summary

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By notice of motion dated 12th October 2016, Judith Akinyi Omondi, the Exparte Applicant, sought an order of certiorari to quash the exparte order issued by the Senior Resident Magistrate Winam on 15th September 2016 in Winam SRM Misc. Civil Application No.32 of 2016, and an order of prohibition barring the Administration Police In Charge Winam and Maurice Adawo Onduru (2nd and 3rd Respondents) from acting on or implementing that order, plus costs. The 3rd Respondent opposed the application through a replying affidavit sworn on 3rd March 2017. The court framed three issues: whether a case for certiorari was established, whether prohibition should issue against the 2nd and 3rd Respondents, and costs. Kibunja J held that although the 3rd Respondent may be the legally registered proprietor of the suit land, the manner in which he initiated the miscellaneous application afforded no opportunity to persons on the land - whether trespassers or otherwise - to be heard. The order directing the police to provide security so the 3rd Respondent could level the land showed he knew of persons likely to object, creating an obligation to enjoin them. Failing to do so, and obtaining orders that if executed would displace them, denied those persons the right to a fair hearing under Article 50 and fair administrative action under Articles 47 and 50 of the Constitution 2010. Finding merit in the motion, the court allowed it in terms of prayers (a) and (b), quashing the exparte order and prohibiting its implementation, with costs payable by the 3rd Respondent.

Key legal issues

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01

Whether the exparte order of 15th September 2016 ought to be quashed

Holding

Yes - the order was issued without joining persons likely to be affected, denying them fair hearing

Reasoning

Although the 3rd Respondent may be the registered proprietor, the way he initiated the miscellaneous application afforded no opportunity to persons on the land to be heard. The order directing police security to level the land showed he knew of persons likely to object; failing to enjoin them and obtaining orders that would displace them violated Article 50.

p. 2
02

Whether prohibition should issue against the 2nd and 3rd Respondents

Holding

Yes - they are barred from acting on or implementing the quashed order

Reasoning

Since the underlying order was issued in breach of Articles 47 and 50 by denying affected persons fair administrative action and a fair hearing, prohibition properly issues to bar the police and the 3rd Respondent from implementing it.

p. 2

Legal principles established

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  • A party obtaining orders likely to displace persons in occupation of land must enjoin them so they are heard before adverse orders issue

Court orders

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  1. 1.Order of certiorari removing into this court and quashing the exparte order issued by the Senior Resident Magistrate Winam on 15th September 2016 in Winam SRM Misc. Civil Application No.32 of 2016
  2. 2.Order of prohibition barring the Administration Police In Charge Winam and Maurice Adawo Onduru from acting on or implementing the exparte order of 15th September 2016
  3. 3.Costs of the application payable by the 3rd Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court (order of certiorari and prohibition); Articles 47 and 50 of the Constitution 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Senior Resident Magistrate, Winam Law Court & another Ex-Parte Judith Akinyi Omondi [2017] KEELC 501 (KLR)", Case Analysis (2017). Judicial Review (Notice of Motion dated 12th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/501/eng@2017-12-06

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