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ELCAllowedJR. NO. 19 OF 2017· [2018] KEELC 1043 (KLR)

Republic v County Government of Meru & another Exparte Isabella Mwendwa M'Angaine [2018] KEELC 1043 (KLR)

Environment and Land Court
31 October 2018
ECE. C. CHERONOLMLUCY N. MBUGUA
1,782 words in judgment
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The bottom line

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A Kenyan court quashed Meru County's decision adding five people to two plots because the owner was never given a hearing before the decision was made.

What this practically means

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Executive summary

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By a Notice of Motion under Order 53 Rule 3 CPR dated 23rd November 2011, the Exparte Applicant sought an order of certiorari to quash the decision of the defunct Municipal Council of Meru, made through its special town planning, works and housing committee meeting of 13th June 2011 and adopted by the full council the same day, including five third parties in the ownership of plots BP/MCM/16(7) and 23(17). She contended she was the sole registered owner of one plot and joint owner of the other with the Interested Party, her estranged husband, and that the Respondent acted on the Interested Party's letter fraudulently, secretly, and without hearing her. The Respondent filed no replying papers but defended the committee's decision as a reasonable safeguard of the children's interests following complaints. The Interested Party asserted joint acquisition of the plots and argued a constructive trust arose, which judicial review could not exhaustively determine. The court, having perused the minutes, held that the Applicant was a joint tenant and was not accorded a fair hearing when the Respondent unilaterally acted on the Interested Party's letter, itself an employee of the Respondent. Relying on Cooper v Board of Works as applied in Misc. App No. 24 of 2006 (Meru), the court found the failure to hear the Applicant breached the cardinal rule of natural justice and constituted classic grounds for certiorari. It also noted the leasehold interests of a public entity ought to have been subjected to public participation. The court allowed the motion, quashed the decision of 13th June 2011, and ordered the Respondent to bear the costs.

Key legal issues

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01

Breach of natural justice

Holding

The Respondent acted unfairly and illegally by acting on a letter written by the Interested Party (its employee) without hearing the Exparte Applicant, which are classic grounds for certiorari.

Reasoning

The Exparte Applicant was a joint tenant with the Interested Party in respect of the plots. The Respondent unilaterally acted on a letter from the Interested Party requesting incorporation of the children's names without inviting the Exparte Applicant to respond. This deprived her of the right to be heard, a cardinal principle of natural justice, rendering the decision liable to be quashed by an order of certiorari.

p. 3
02

Impartiality of the Respondent

Holding

The Respondent acted impartially (without impartiality) by considering a letter from its own employee without giving the affected party a hearing.

Reasoning

The court found the Respondent was conflicted because it relied on a letter written by the Interested Party who was one of its employees. Combined with the denial of a hearing, this vitiated the committee's recommendation and the full council's adoption of it.

p. 2
03

Public participation in public leasehold interests

Holding

Leasehold interests held by a public entity ought to be subjected to public participation before other persons are incorporated into existing leasehold interests.

Reasoning

The court observed that the suit properties are leasehold interests held by the Respondent, a public entity. Altering ownership of such public-adjacent interests required public participation, which did not occur, further supporting the grant of certiorari.

p. 3

Legal principles established

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  • No person is to be deprived of property without an opportunity of being heard - natural justice requires notice and hearing before adverse administrative decisions
  • A public body must invite an affected party to respond to allegations raised by another person before making a decision affecting that party's property interest

Court orders

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  1. 1.An order of certiorari issued to remove to the court and quash the decision of the Municipal Council of Meru pursuant to the minutes of the special town planning works and Housing Committee meeting held on 13th June 2011 in respect of Plot Numbers BP/MCM/16 (7) and 23 (17)
  2. 2.The Respondent to bear the costs of the judicial review proceedings

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (3)

  • Pashito Holdings & Another -Vs- Ndungu & 2 Others
    HCCA No. 138 of 1997 Nairobi
  • Republic -Vs- Attorney General, Registrar of Societies, Nkubu Revival Christian Centre (Interested Party)
    Misc. App No. 24 of 2006 (Meru)
  • Cooper -Vs- The Board of Works for the Wandsworth District
    (1863) 321 J.C.P 185; 143 E.R 414
Jurisdiction invoked
Order 53 Rule 3 CPR (Judicial Review jurisdiction of the High Court/ELC)

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 County Government of Meru & another Exparte Isabella Mwendwa M'Angaine [2018] KEELC 1043 (KLR)", Case Analysis (2018). JR. NO. 19 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1043/eng@2018-10-31

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