Republic v District Land Registrar-Nyeri Ex-parte Michael Mbai Nyage (as Administrator of the Estate of Nyange Geita alias Nyange s/o Giita alias Benson Nyange Giita) [2018] KEELC 852 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a land registrar's road-opening notice because it was issued against a deceased owner without involving his estate.
What this practically means
#Executive summary
#Key legal issues
#Whether certiorari should issue to quash the respondent's notice dated 23rd February, 2016
Certiorari issued because the notice addressed a deceased registered proprietor whose estate and legal representatives were not involved, breaching natural justice and questioning the legality of the process.
It was undisputed that one addressee of the impugned notice was deceased and could only be lawfully involved through a legal representative or administrator. The respondent did not controvert the contention that the estate was not given an opportunity to participate through its legal representative. Failing to accord the estate a hearing brought the legality of the process into question despite the respondent's reasons being germane.
Whether prohibition should issue against the respondent
Prohibition issued because there was no evidence the notice had been acted upon, so the order could prevent the making/implementation of the decision.
Relying on the KNEC v Gathenji principles, prohibition lies for absence of jurisdiction or departure from natural justice, but only against a decision not yet made. Since the notice had not been acted upon, the court found the applicant entitled to an order prohibiting the respondent from opening the access road on the basis of the impugned notice.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision.
- Certiorari issues where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.
- Prohibition lies for excess or absence of jurisdiction and departure from the rules of natural justice, but only to prevent a decision not yet made.
- A public decision affecting a deceased registered proprietor cannot lawfully proceed without involvement of the deceased's legal representative; doing so violates natural justice.
Court orders
#- 1.An order of certiorari to remove to the court and quash the decision of the respondent communicated vide the respondent's letter dated 23rd February, 2016
- 2.An order of prohibition prohibiting the respondent from proceeding with the opening of the access road between Thegenge/Karangia/220 and 221 on the basis of the notice dated 23rd February, 2016
- Jurisdiction invoked
- Judicial review jurisdiction under order for certiorari and prohibition, pursuant to leave granted on 24th May 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Land Registrar-Nyeri Ex-parte Michael Mbai Nyage (as Administrator of the Estate of Nyange Geita alias Nyange s/o Giita alias Benson Nyange Giita) [2018] KEELC 852 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 13th June, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/852/eng@2018-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.