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ELCAllowedJudicial Review Application (Notice of Motion dated 21st September 2018)· [2019] KEELC 1433 (KLR)

Republic v Director of Land Adjudication & another Exparte Oluoch Amollo [2019] KEELC 1433 (KLR)

High Court of Kenya
18 September 2019
GOG.M.A Ongondo
887 words in judgment
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The bottom line

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The High Court ordered Homa Bay land officials to obey a Minister's land ruling and remove a caution blocking a rightful owner's title.

What this practically means

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Executive summary

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The ex-parte applicant, Oluoch Amollo, sought an order of mandamus compelling the 1st respondent to implement a Minister's order and the 2nd respondent to remove a caution registered over land parcel number Lambwe East/88. The application was brought under Order 53 Rules 3 and 4 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and Article 47(1) of the Constitution, with leave granted on 17th September 2018. The applicant alleged he bought the suit land in 1980 from one Francis Ogolla Okoro, who later purported to resell it to Andrew Kamush Bodi, both now deceased. The dispute was determined in the applicant's favour by the Lands Minister, but the respondents failed to implement that order or remove the caution despite correspondence. Although duly served, the respondents neither filed a response nor appeared, leaving the application unchallenged. The court adopted the three issues framed by the applicant's counsel and, guided by the principle that judicial review concerns the decision-making process rather than merits, invoked Articles 40 and 47 of the Constitution on protection of property and fair administrative action. Holding that the respondents had refused to act in circumstances in which they should act, Ongondo J found the application proved on a balance of probabilities and granted both mandamus orders, with costs in the cause.

Key legal issues

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01

Whether the 1st and 2nd respondents have a public duty to implement the Minister's Order and remove the caution on the suit land.

Holding

Yes. The court held that the respondents' refusal to act triggered the appropriate mandamus orders.

Reasoning

The applicant showed he was the registered proprietor of Lambwe East/88 and that the Minister's order in his favour had not been implemented despite correspondence. The court invoked Article 40 (protection of property) and Article 47 (fair administrative action) and found the respondents had refused to act in circumstances where they should act, making mandamus appropriate.

p. 2
02

Whether an unchallenged judicial review application is proved.

Holding

The unchallenged application was proved on a balance of probabilities.

Reasoning

The respondents were duly served by affidavits of service but failed to respond or appear. The court treated the application as unchallenged and, relying on Kirugi v Kabiya, held it proved on a balance of probabilities, entitling the applicant to the mandamus orders sought.

p. 2

Legal principles established

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  • Judicial review remedies are concerned with the decision-making process and not the merits of the decision.
  • Where a public officer refuses to act in circumstances in which he should act, mandamus lies to compel performance of the public duty, including implementing a Minister's order and removing a caution.

Court orders

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  1. 1.An order in the nature of mandamus to compel the 2nd respondent to remove the caution registered in land parcel number Lambwe East/88.
  2. 2.An order in the nature of mandamus to compel the 1st respondent to implement the Minister's order with respect to land parcel number Lambwe East/88.
  3. 3.Costs be in the cause.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rules 3 and 4
  • Law Reform Act, Cap 26 Laws of Kenyasections 8 and 9
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 40

Cases cited (4)

  • District Commissioner Kiambu v Republic and others ex-parte Ethan Njau
    (1960) EA 109
  • R The Principal Secretary State Department of Interior and Coordination of National Government and Principal Secretary ex parte Salim Awadh Saalim
    (2017) eKLR
  • Republic v Kenya Revenue Authority ex-parte Yaya Tours Ltd
    (2008) eKLR
  • Kirugi and another v Kabiya and 3 others
    (1987) eKLR
Jurisdiction invoked
Order 53 Rules 3 and 4 of the Civil Procedure Rules, 2010; sections 8 and 9 of the Law Reform Act, Cap 26; Article 47(1) of the Constitution of Kenya, 2010; leave granted on 17th September 2018

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 Director of Land Adjudication & another Exparte Oluoch Amollo [2019] KEELC 1433 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 21st September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1433/eng@2019-09-18

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