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ELCDismissedJR Misc Application No. 536 of 2017 (as filed in High Court, Nairobi); Notice of Motion dated 11th September 2017· [2019] KEELC 1880 (KLR)

Mary Odhiambo and Antony Omondi Dosio (Suing as representatives of the Estate of the late Jefitha George Odhiambo Dosio v National Land Commission (Judicial Review 3 of 2018) [2019] KEELC 1880 (KLR)

Environment and Land Court of Kenya
30 July 2019
JOJ. O. Olola
1,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a land title cancellation because the family suing left the new landowner out of the case entirely.

What this practically means

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Executive summary

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The Ex-parte Applicants, the widow and son and legal representatives of the late Jefitha George Odhiambo Dosio, sought judicial review orders of Certiorari and Prohibition against the National Land Commission. They claimed the deceased was allocated Plot No. 433-Watamu Township by the Commissioner of Lands in 1992, complied with all allotment conditions, and was pursuing registration when the Commission, via Gazette Notice No. 6866 Vol. CXIX No. 97 dated 17th July 2017, cancelled the title and re-allocated the plot to one Nelson Mathenge Kirimire. They accused the Commission of violating their right to property, acting illegally and ultra vires, and breaching the Fair Administrative Action Act, 2015. The Respondent did not file a response or participate in the hearing despite service. Olola J applied the principle that judicial review deals with process rather than merits, and found that the impugned Gazette Notice showed the Commission had published public notices in the national dailies inviting interested parties and held hearings between 7th September 2015 and 5th February 2016 before making its determinations. Further, the records did not reflect the Applicants or the deceased as owners at the time of the decision, and the Applicants had not enjoined Nelson Mathenge Kirimire, the third party to whom the land was re-allocated, despite being aware of his interest. Holding that Certiorari and Prohibition are discretionary and that granting them would adversely affect the absent third party, the Court declined to exercise its discretion in the Applicants' favour, dismissed the Motion dated 11th September 2017, and made no order as to costs.

Key legal issues

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01

Scope of judicial review remedies

Holding

Judicial review examines only the process by which a decision was made, not its merits

Reasoning

The Court cited authority that judicial review determines whether the decision-maker had jurisdiction, whether affected persons were heard, and whether irrelevant matters were taken into account. The remedy exists to afford administrative justice and entrench the rule of law, not to adjudicate underlying ownership of land.

p. 2
02

Discretion to grant Certiorari and Prohibition where a third party is not enjoined

Holding

The Court declined to grant the orders because the person re-allocated the land was not made a party, and granting the orders would adversely affect his interests

Reasoning

The Applicants' own documents showed Nelson Mathenge Kirimire was given the land, yet he was not joined. The impugned Gazette Notice also showed the Commission had published public notices inviting interested parties and held hearings before determining the matter, weakening the natural justice claim.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • The grant of Certiorari and Prohibition is discretionary and the Court must be satisfied there is a reasonable basis for their grant, including consideration of the interests of third parties not joined to the proceedings

Court orders

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  1. 1.The Motion dated 11th September 2017 is dismissed with no order as to costs

Authorities

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Legislation

  • Fair Administrative Action Act2015 (generally)

Cases cited (1)

  • Republic –vs- Attorney General & 4 Others exparte Diamond Hashim Lalji & Another
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under order of leave granted by Mativo J (Certiorari and Prohibition); matter transferred to ELC Malindi

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, "Mary Odhiambo and Antony Omondi Dosio (Suing as representatives of the Estate of the late Jefitha George Odhiambo Dosio v National Land Commission (Judicial Review 3 of 2018) [2019] KEELC 1880 (KLR)", Case Analysis (2019). JR Misc Application No. 536 of 2017 (as filed in High Court, Nairobi); Notice of Motion dated 11th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1880/eng@2019-07-30

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