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ELCPartially AllowedApplication dated 12th October 2017 (Judicial Review proceedings)· [2019] KEELC 3746 (KLR)

William Kibera Waiganjo (Suing as Legal Representative and Guardian of Leah Wachu Waiganjo v National Land Commission; Njeri Muchangiru (Interested Party) [2019] KEELC 3746 (KLR)

High Court of Kenya at Thika
5 April 2019
LGL. Gacheru
1,750 words in judgment
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The bottom line

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The High Court froze the National Land Commission's revocation of a Ruiru land title, ruling that decisions made after a stay order was served are void from the start.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 12th October 2017 brought under Section 5(1) of the Judicature Act and Section 3A of the Civil Procedure Act, seeking stay of a gazette notice dated 17th July 2017 by the National Land Commission revoking the title to land parcel Ruiru/Ruiru East Block 2/97 & 98 and allocating it to the interested party, pending the hearing of judicial review proceedings. The Applicant, the legal representative and guardian of Leah Wachu Waiganjo, the registered owner of the suit property, argued that the court had on 3rd April 2017 granted leave to apply for judicial review with the leave operating as a stay, and that despite being served, the Respondent gazetted the revocation in breach of that order. The interested party opposed, asserting the title had been declared a forgery in Thika Criminal Case No. 162 of 2002 and that the order was overtaken by events, while the Respondent maintained the hearings had concluded before service. The Applicant withdrew the prayer for committal of the NLC Chairman for contempt, leaving only the stay prayer. The court held that since the order was served before the Commission's decision, the subsequent decision and gazettement were illegal and void ab initio, and that the decision was still in the course of implementation as the interested party was yet to be registered. Relying on R (H) vs Ashworth Special Hospital Authority and Taib A. Taib, the court allowed the application in terms of prayer 2 with costs.

Key legal issues

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Whether the court should grant stay of the decision of the Respondent gazette notice pending the hearing and determination of the Judicial Review application

Holding

The stay was granted because the decision had not been fully implemented; the gazetttement was a first process only, the interested party not yet being registered as proprietor, so the decision was still in the course of implementation and capable of being stayed.

Reasoning

The court noted it had on 3rd April 2017 granted leave to apply for judicial review and directed that the leave operate as stay, and that this order was served on the Commission before its decision. Any further decision and the subsequent gazettement after service were therefore illegal and void ab initio. On the authorities, a stay is available where the decision is still in the course of implementation; here the interested party was yet to be registered as owner, so the process was only partially complete and the stay would preserve the substance of the judicial review application.

p. 2

Legal principles established

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  • Where leave to apply for judicial review has been granted and ordered to operate as a stay, and that order is served before the decision is made, any further decision-making process and subsequent gazettement after service are illegal and void ab initio
  • A stay of a judicial review decision may be granted where the decision has not been fully implemented; if the decision has already been implemented there is nothing to stay, but if it is in the course of implementation the court may grant the stay
  • Stay orders are the efficacious remedy in judicial review because injunctions are not available against the Government and public officers, and their purpose is to prevent the judicial review application from being rendered nugatory

Court orders

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  1. 1.Stay of the decision of the Respondent vide gazette notice dated 17th July 2017 at page 4277 that land parcel No. Ruiru/Ruiru East Block 2/97 & 98 lawfully belongs to the interested party, pending the hearing and determination of the Judicial Review proceedings
  2. 2.Costs of the application to the Applicant

Authorities

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Legislation

  • Judicature Act, Cap 8 Laws of KenyaSection 5(1)
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A

Cases cited (3)

  • R (H) vs Ashworth Special Hospital Authority
    (2003) 1 WLR 127
  • Sun Africa Hotels Limited & Ano vs K.R.A & 2 others
    (2018) eKLR
  • Taib A. Taib vs The Minister for Local Government & Others
    Mombasa HCMISCA No. 158 of 2006
Jurisdiction invoked
Section 5(1) of the Judicature Act, Cap 8 Laws of Kenya and Section 3A of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "William Kibera Waiganjo (Suing as Legal Representative and Guardian of Leah Wachu Waiganjo v National Land Commission; Njeri Muchangiru (Interested Party) [2019] KEELC 3746 (KLR)", Case Analysis (2019). Application dated 12th October 2017 (Judicial Review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3746/eng@2019-04-05

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