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ELCPartially AllowedJudicial Review (Notice of Motion dated 20th September, 2013)· [2018] KEELC 240 (KLR)

Njeru Mirani & 2 others v Attorney General & 4 others; Andrew Nyaga & 2 others (Interested Parties) [2018] KEELC 240 (KLR)

High Court of Kenya
18 December 2018
7,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court cancelled a land adjudication declaration because the Mbeere community was excluded from the committee, but allowed a fresh, inclusive process.

What this practically means

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Executive summary

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This was a first-instance judicial review application by Notice of Motion dated 20th September, 2013, brought under section 8 of the Law Reform Act and Order 53 rule 3 of the Civil Procedure Rules by Njeru Mairani, David Njiru Mutua and Daniel Nyaga, chairman, secretary and treasurer respectively of 13 Mbeere clans in Igamba Ng'ombe Division. They sought an order of prohibition against the 2nd to 5th respondents effecting Declaration Reference ADM/LA/4/118 of 4th October, 2012 declaring Kamaindi Location an adjudication section, and an order of mandamus compelling the respondents to cancel and remove the declaration for want of representation of the Mbeere community in the adjudication committee. Leave was granted on 30th September, 2013 by Olao J, with stay. The interested parties opposed, arguing the applicants lacked locus standi as an unregistered group with no land in the adjudication section, that the meeting and committee selection complied with sections 5 and 6 of the Land Adjudication Act, and that the motion was incompetent for late filing and improper institution. The respondents filed no submissions. Framing the single question of entitlement to prohibition and mandamus, the court held that the respondents had not denied discriminating against the Mbeere community and found the applicants deserving of the orders. Prohibition and mandamus issued cancelling the declaration, with each party bearing own costs given the public interest nature of the litigation. The court clarified that a fresh declaration complying with constitutional rights could be issued.

Key legal issues

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Whether the declaration establishing Kamaindi Adjudication Section was procedurally proper

Holding

The declaration and the constitution of the adjudication committee were tainted by discrimination against the Mbeere community; the applicants deserved the prohibitory and mandatory orders sought

Reasoning

The court found, on the pleadings and submissions, that the respondents did not deny discriminating against the applicants, who represented the Mbeere community, in the process of declaring the adjudication section and constituting the committee. The interested parties had argued there was no evidence of exclusion and that the process complied with sections 5 and 6 of the Land Adjudication Act, but the court preferred the applicants' position and granted both prohibition and mandamus, while clarifying that a fresh, rights-compliant declaration could issue.

p. 11

Legal principles established

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  • An administrative process that excludes a significant community from participation in the constitution of an adjudication committee amounts to discrimination warranting judicial review relief
  • In public interest litigation the court may decline to award costs to any party

Court orders

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  1. 1.An order of prohibition prohibiting the 2nd, 3rd, 4th and 5th respondents from effecting Declaration Reference number ADM/LA/4/118 of 4th October, 2012 by the 5th Respondent declaring Kamaindi of Kamaindi Location in Igamba Ng'ombe Division
  2. 2.An order of mandamus bringing into this court and compelling the Respondents to cancel and remove Declaration Reference Number ADM/LA/4/118 of 4th October, 2012 by the 5th Respondent declaring Kamaindi of Kamaindi Location in Igamba Ng'ombe Division for want of representation
  3. 3.Each party to bear their own costs, this being public interest litigation
  4. 4.Clarification that the Respondents may issue another Declaration which does not breach the constitutional rights of the applicants

Authorities

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Legislation

  • Law Reform ActSection 8
  • Civil Procedure RulesOrder 53 rules 1(2), 3
  • Constitution of Kenya, 2010Articles 11, 22(2)(b), 40, 47, 159(1)(d), 258(2)(b)
  • Land Adjudication Act, Cap 284Sections 2, 5, 6, 20, 21, 23(2), 30
  • Fair Administrative Actions Act, 2015Sections 4 and 11

Cases cited (18)

  • Zachariah Wagunza & another v Office of the Registrar Academic Kenyatta University & 2 others
    [2013] eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Council of Civil Unions vs. Minister for the Civil Service
    [1985] AC 2
  • An Application by Bukoba Gymkhana Club
    [1963] EA 478
  • Republic v Nairobi City County Ex-Parte: Gurcharn Singh Sihra & 4 others
    [2014] eKLR
  • Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited
    [2008] eKLR
  • James Opiyo Wandayi v Kenya National Assembly & 2 others
    [2016] eKLR
  • The Indian Borough of Newham vs. Khatun-Zeb and Iqbal
    [2004] EWCA Civ. 55
  • Republic v Kenya Revenue Authority Ex-Parte: Cosmos Limited
    [2016] eKLR
  • Associated Provincial Picture Houses vs. Wednesbury Corporation
    [1948] 1 KB 223
  • Short vs. Poole Corporation
    [1926] Ch. 66
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Michael Osundwa Sakwa vs Chief Justice and President of the Supreme Court of Kenya & Another
    (2016) eKLR
  • City Chemist & Ano vs Oriental Commercial Bank Ltd
    Civil Application No. 302 of 2008
  • Farmers Bus Services & Ano vs Transport Licensing Tribunal
  • Saleio Njagi Nthirimano vs Rosaline Ruguru Waweru & 3 Others
    HC Misc ELC Case No. 3 of 2012 (Kerugoya)
  • Cosmas Muriungi Thambo vs District Land Adjudication Officer Tigania East and Margaret Kaberia M'Twankoroi
    HC Misc JR Application No. 104 of 2010
  • Ako vs Special District Commissioner, Kisumu and Another
    Court of Appeal Civil Appeal No. 27 of 1989
Jurisdiction invoked
Section 8 of the Law Reform Act and Order 53 rule 3 of the Civil Procedure Rules

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, "Njeru Mirani & 2 others v Attorney General & 4 others; Andrew Nyaga & 2 others (Interested Parties) [2018] KEELC 240 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 20th September, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/240/eng@2018-12-18

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