Republic v District Land Surveyor & 2 others Ex parte Raphael C. Odhiambo [2019] KEELC 72 (KLR)
The bottom line
#Kenya's High Court quashed a county decision to carve an access road through private land because the owner was never notified or heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' creation of an access road on the applicant's land without notice or opportunity to be heard violated the right to fair administrative action under Article 47(1)
Yes. The respondents violated the audi alteram partem rule by failing to notify the applicant of the change in physical planning or give him a chance to make representations, and the claim was proved on a balance of probabilities.
The applicant, the registered proprietor of the suit land under RCO-1, showed the 2nd respondent issued a letter about opening an access road across his parcel without notifying him of the change in physical planning, contrary to section 19 of the Physical Planning Act. He was never heard on the effects of that decision. Relying on Article 47(1), read with Article 40(1) and (3), and on Oloo Onyango and Re-Hebtulla Properties, the court held the principle of natural justice was violated. The case was uncontroverted and proved on a balance of probabilities.
Scope of judicial review remedy
Judicial review is concerned with the decision-making process, not the merits of the decision.
The court noted, citing Republic v Kenya Revenue Authority ex-parte Yaya Tours Limited, that the remedy examines the legality and fairness of the process by which the decision was made. On that basis the failure to involve the applicant in the planning process, rather than the merits of locating the road, grounded the relief.
Legal principles established
#- Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and where a right or fundamental freedom is adversely affected by administrative action, to written reasons
- Judicial review remedy is concerned with the decision-making process and not the merits of the decision
- The burden of proving a case lies on the plaintiff and is not lessened even where the case is heard by way of formal proof
- Due process must be followed even in findings of unlawful acquisition of property contemplated in Article 40(6)
Court orders
#- 1.Judgment entered for the applicant against the respondents jointly and severally in terms of certiorari and prohibition orders to quash and prohibit the decision by the District Land Surveyor and District Land Registrar of Homa-Bay County to create an access road on land parcel number Kasgunga/Kamreri/578
- 2.Costs of the Judicial Review application to be in the cause
- Jurisdiction invoked
- Order 53 Rules 1 and 3(1) of the Civil Procedure Rules 2010; sections 8 and 9 of the Law Reform Act Cap 26; section 19 of the Physical Planning Act Cap 286
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Land Surveyor & 2 others Ex parte Raphael C. Odhiambo [2019] KEELC 72 (KLR)", Case Analysis (2019). Judicial Review application by notice of motion dated 20th May 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/72/eng@2019-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.