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ELCPartially AllowedJudicial Review application by notice of motion dated 20th May 2013· [2019] KEELC 72 (KLR)

Republic v District Land Surveyor & 2 others Ex parte Raphael C. Odhiambo [2019] KEELC 72 (KLR)

High Court of Kenya
18 December 2019
1,450 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 county decision to carve an access road through private land because the owner was never notified or heard.

What this practically means

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Executive summary

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This was a first-instance judicial review application decided by the High Court at Migori (G.M.A. Ongondo, J) on 18th December 2019. Leave was granted on 2nd May 2013 in prayer (b) of an ex-parte chamber summons dated 11th February 2013, and the applicant, Raphael C. Odhiambo, subsequently filed a notice of motion dated 20th May 2013 under Order 53 Rules 1 and 3(1) of the Civil Procedure Rules 2010, sections 8 and 9 of the Law Reform Act and section 19 of the Physical Planning Act, seeking certiorari and prohibition against the District Land Surveyor and District Land Registrar of Homa-Bay County for creating an access road on land parcel Kasgunga/Kamreri/578 without following the statutory planning procedures or giving him notice and a chance to make representations. The respondents were served repeatedly but filed no reply, and the application was argued on the applicant's written submissions alone. Citing Articles 40(1) and 47(1) of the Constitution, the court held that the applicant's right to fair administrative action and natural justice (audi alteram partem) had been violated, that the applicant's uncontroverted case was proved on a balance of probabilities, and that judicial review concerns the decision-making process rather than the merits. Judgment was entered for the applicant against the respondents jointly and severally in terms of the certiorari and prohibition orders sought, with costs of the application to be in the cause.

Key legal issues

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01

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)

Holding

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.

Reasoning

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.

p. 3
02

Scope of judicial review remedy

Holding

Judicial review is concerned with the decision-making process, not the merits of the decision.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the Judicial Review application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 Rule 1
  • Civil Procedure Rules 2010Order 53 Rule 3(1)
  • Law Reform Actsections 8 and 9
  • Physical Planning Actsection 19
  • Constitution of Kenya, 2010Article 40(1) and (3)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (7)

  • Re- Insurance Corporation vs National Land Commission
    (2018) eKLR
  • David Oloo Onyango vs Attorney General
    (1987) eKLR
  • Sceneries Ltd vs National Land Commission
    (2017) eKLR
  • Eunice Grace Njambi Kamau and another vs the Hon. Attorney General and 4 others
    (2013) eKLR
  • Re- Hebtulla Properties Limited
    (1976-80) 1 KLR 1195 at 1209
  • Republic vs Kenya Revenue Authority ex-parte Yaya Tours Limited
    (2008) KLR
  • Kirugi and another vs Kabiya and 3 others
    (1987) KLR 347
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

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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 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.