Republic v DLASO, Igembe South Exparte Janet Ncororo; Salesio Nkunja Muga & another (Interested Parties) [2019] KEELC 3658 (KLR)
The bottom line
#A Kenyan land adjudication decision was quashed because the affected landowner was never summoned or notified before it was made.
What this practically means
#Executive summary
#Key legal issues
#Whether the DLASO's decision of 22.11.2016 in objection case Nos 2990 and 2991 should be quashed
Yes - the decision was made in breach of natural justice because the Applicant was not summoned or notified, violating Articles 50 and 47 of the Constitution.
The Court perused the impugned proceedings and found no summons or notice to the Applicant, who was directly and adversely affected by the shifting of parcels 4532 and 4533 onto her land. The right to be heard under Article 50 read with Article 47 was flouted, and the DLASO acted contrary to natural justice by depriving her of the right to be heard on a matter affecting her constitutional right to own property.
Whether an order of prohibition should issue against the Respondent
No - prohibition is prospective and cannot quash a decision already made, so it would not be efficacious here.
Relying on the Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge decision, the Court noted that prohibition looks to the future and can only prevent a contemplated decision, whereas certiorari is the remedy that quashes a decision already made where natural justice was not complied with. Since the impugned decision had already been made, prohibition would serve no purpose.
Costs
Costs of the application awarded to the Applicant.
Having succeeded on the principal prayer for certiorari, the Applicant was awarded costs. The Respondent, despite being represented, filed no response to the motion, and the 1st Interested Party's opposition did not persuade the Court on the process point.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision itself.
- A quasi-judicial decision made without notice to a person directly affected breaches the rules of natural justice and the constitutional right to be heard and is liable to be quashed by certiorari.
Court orders
#- 1.Judicial review order of certiorari removing into the Court and quashing the proceedings and decision of the District Land Adjudication and Settlement Officer, Igembe District made on 22.11.2016 in objection case Nos 2990 and 2991 relating to land parcels 4532 and 4533 AMWATHI/MUTUATI IIA Adjudication Section
- 2.Costs of the application payable to the Applicant
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court over quasi-judicial decisions of the District Land Adjudication and Settlement Officer; Articles 47 and 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v DLASO, Igembe South Exparte Janet Ncororo; Salesio Nkunja Muga & another (Interested Parties) [2019] KEELC 3658 (KLR)", Case Analysis (2019). Judicial Review Application (Chamber Summons dated 09.12.2016; Notice of Motion dated 03.01.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3658/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.