Rebublic v Land Settlement Fund Board Trustees & 3 others;Flora Mwenja (suing as the representative to the estate of Ezekiel Ngure Mwenja (Deceased) (Applicant) [2019] KEELC 5093 (KLR)
The bottom line
#A Kenyan court refused to force officials to issue land title documents because the same family claim had already been decided and no allotment letter ever existed.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review application is res judicata
Yes - the same orders were sought and finally determined in a prior suit between the same parties over the same plot, ousting the court's jurisdiction
The deceased had previously sued the Respondents seeking a declaration of ownership and transfer of Plot No. 713 Mawingo settlement scheme, and that suit was dismissed for want of sufficient evidence of allotment. The ex parte Applicant, as his representative, now sought the same relief through judicial review between the same parties on the same subject matter. Section 7 of the Civil Procedure Act bars such relitigation, and the court lacked jurisdiction to entertain the matter.
Whether in any event the Applicant was entitled to mandamus
No - the Applicant failed to establish a legal right to the performance of the duty since there was no evidence an allotment letter had been issued, so no conditions of compliance existed
Mandamus compels performance of a public or statutory duty owed to a party with a legal right to expect performance. Here there was no evidence the Applicant was ever issued with an allotment letter, so it was impossible to find compliance with the conditions such a letter would have specified. Courts do not issue orders in vain; mandamus does not licence courts to micro-manage government agencies.
Legal principles established
#- A matter already litigated and finally decided between the same parties on the same subject matter is res judicata and the court has no jurisdiction to hear it
- Title to landed property comes into existence only after issuance of a letter of allotment, satisfaction of the conditions therein and actual issuance of title documents
- Mandamus compels performance of a public or statutory duty owed to a party with a legal right to its performance
- The court will withhold discretionary judicial review remedies where they would serve no useful purpose or where the Applicant fails to establish the legal right underlying the claim
Court orders
#- 1.The Notice of Motion dated 1st April 2019 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under the Fair Administrative Actions Act (Sections 3, 4, 7, 9 and 11), Articles 10 and 60(1) of the Constitution and Sections 7, 134(6), 134(7), 134(8) and 135(1)(c) of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rebublic v Land Settlement Fund Board Trustees & 3 others;Flora Mwenja (suing as the representative to the estate of Ezekiel Ngure Mwenja (Deceased) (Applicant) [2019] KEELC 5093 (KLR)", Case Analysis (2019). Judicial Review No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5093/eng@2019-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.