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ELCPartially AllowedNotice of Motion dated 7th December, 2015 (Judicial Review)· [2018] KEELC 4302 (KLR)

Republic v Deputy County Commissioner Kitui West & 2 others [2018] KEELC 4302 (KLR)

High Court of Kenya
23 February 2018
OAO.A. Angote
1,150 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 quashed a land appeal decision because the decision-maker dismissed the case without ever hearing the affected party.

What this practically means

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Executive summary

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The Ex-parte Applicant moved the High Court by Notice of Motion dated 7th December 2015 seeking certiorari to quash the Respondent's decision of 7th October 2015 dismissing Land Appeal Case No. 67 of 1988, and a declaration that the determination was void. The Applicant deponed that he had occupied Nzalae/Mutungoni/51 since 1952; that adjudication in 1976 subdivided it into Plots 51 and 809; that Plot 809 was allocated to the Interested Party; and that his appeal against that allocation was dismissed without being heard, the Respondent treating its facts as similar to Appeal No. 66 of 1988. The Interested Party countered that a declaration cannot issue in judicial review, that the Applicant owns Plot 51, and that both parties were heard in Appeal No. 66 of 1988 which resolved the issues in both appeals. The court held that only certiorari was available, the declaratory and other prayers not being judicial review orders. On the merits, the Interested Party did not place the records of Appeal No. 66 before the court, and the Minister's decision did not state that the Applicant was heard in that appeal. The court therefore found that the Applicant's Appeal No. 67 of 1988 was dismissed without hearing him, contrary to the cardinal rule of natural justice that a party should not be condemned unheard, applying Onyango vs. Attorney General. The Motion was allowed: certiorari issued quashing the decision, and each party bore his own costs.

Key legal issues

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01

Whether the Applicant was denied a fair hearing in Land Appeal Case No. 67 of 1988

Holding

The appeal was dismissed without hearing the Applicant, rendering the decision unlawful

Reasoning

The Interested Party claimed Appeal No. 66 of 1988 covered both parcels and both parties were heard, but its records were not placed before the court. The Minister's decision in Appeal No. 67 did not state the Applicant was heard in Appeal No. 66 or that the suits raised identical issues. Absent that record, the court found the Applicant was condemned unheard and the dismissal was unlawful.

p. 3
02

Scope of relief available on judicial review

Holding

Only certiorari could issue; the declaratory and other prayers were not judicial review orders

Reasoning

The substantive motion sought only certiorari as a true judicial review writ. The court agreed with the Interested Party that judicial review is confined to orders such as certiorari, mandamus and prohibition, and that declaratory relief could not be granted within such an application, so the non-judicial-review prayers were disregarded.

p. 2

Legal principles established

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  • A party should not be condemned unheard; a decision made without hearing a party may be quashed by the High Court
  • The principle of natural justice applies where ordinary people would reasonably expect decision-makers to act fairly

Court orders

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  1. 1.An order of certiorari to remove to the court for the purpose of quashing the decision of the Respondent made on 7th October, 2015 in Land Appeal Case No. 67 of 1988
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Civil Procedure RulesOrder 53

Cases cited (1)

  • Onyango vs. Attorney General
    (1986-1989) E.A 456
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules (judicial review)

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 Deputy County Commissioner Kitui West & 2 others [2018] KEELC 4302 (KLR)", Case Analysis (2018). Notice of Motion dated 7th December, 2015 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4302/eng@2018-02-23

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