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ELCDismissedNot stated in the judgment (Judicial Review Notice of Motion dated 11th July 2016; application dated 31st October 2017)· [2018] KEELC 241 (KLR)

Republic v Chief Land Registrar ; Mbaru Lewa Mbaru & 4 others (Interested Parties) Exparte Charles P. Chemmuttut [2018] KEELC 241 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Judicial Review)
14 December 2018
1,817 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 refused to overturn a judgment revoking Malindi land titles, ruling that title validity cannot be challenged through judicial review.

What this practically means

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Executive summary

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This is a ruling on an application dated 31st October 2017 by the 2nd and 4th Interested Parties seeking to set aside the ex-parte judgment delivered on 19th September 2017, which had allowed the Ex-parte Applicant's (Justice Charles P. Chemmutut) judicial review Notice of Motion dated 11th July 2016. That judgment had directed the Chief Land Registrar to revoke grants over LR No. MN/III/432-435 and issue a certificate of lease/title to the Ex-parte Applicant, in implementation of a National Land Commission determination published in Gazette Notice No. 307 of 22nd January 2016. The Interested Parties, holding titles to parcels MN/III/434 and MN/III/435, claimed they were never served with notice of the Commission's public hearing nor of the judicial review proceedings, and that their titles were obtained through due process. The Ex-parte Applicant countered that service was effected by substituted newspaper advertisement pursuant to a court order of 5th October 2016. Justice J.O. Olola found no explanation for the 2nd Interested Party's interest, noted the applicants were properly served, and held that challenges to the validity of title fall outside judicial review. The applicants had not sought certiorari to quash the Commission's decision, which remained unvaried. Applying Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, and following Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, the court dismissed the application with costs to the Ex-parte Applicant. Judgment was delivered at Malindi on 14th December 2018.

Key legal issues

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01

Whether to set aside the ex-parte judgment of 19th September 2017

Holding

The application was dismissed as it lacked merit; the applicants failed to demonstrate grounds warranting exercise of the court's discretionary jurisdiction

Reasoning

The court applied Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, holding that the discretion to set aside an ex-parte judgment serves justice and is not meant for parties who deliberately obstruct justice. The applicants, though properly served by substituted newspaper advertisement, did not participate. Moreover, the 2nd Interested Party's interest was never explained in the supporting affidavits.

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02

Whether validity of the Interested Parties' titles could be addressed within judicial review proceedings

Holding

No - the validity of title falls outside the province of judicial review; the National Land Commission had already determined the issue and only certiorari could quash that decision

Reasoning

Relying on Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, the court held that mandamus only compels performance of a public duty. The judgment of 19th September 2017 merely enforced the Commission's determination which remained unvaried and unquashed. The applicants had not sought certiorari against the Commission's decision, so the court could not revisit the validity of their titles.

p. 3

Legal principles established

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  • The Court's discretion to set aside an ex-parte judgment is wide but is not designed to assist a party who deliberately obstructed or delayed the course of justice
  • Mandamus compels performance of a public duty imposed by statute; judicial review does not canvass the validity of title already determined by the Commission
  • Only certiorari can quash a decision already made; absent an application for certiorari, the court will not revisit the underlying determination

Court orders

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  1. 1.The Application dated 31st October 2017 is dismissed
  2. 2.Costs of the application awarded to the Ex-parte Applicant

Authorities

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Legislation

  • Kenya Gazette Notice No. 307Publication of National Land Commission determination

Cases cited (3)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
  • Kenya National Examination Council –vs- Republic Ex Parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Judicial review jurisdiction of the High Court (orders of mandamus and certiorari)

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 Chief Land Registrar ; Mbaru Lewa Mbaru & 4 others (Interested Parties) Exparte Charles P. Chemmuttut [2018] KEELC 241 (KLR)", Case Analysis (2018). Not stated in the judgment (Judicial Review Notice of Motion dated 11th July 2016; application dated 31st October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/241/eng@2018-12-14

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