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ELCDismissedJudicial Review No. 7 of 2018· [2019] KEELC 5093 (KLR)

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)

Environment and Land Court of Kenya
19 November 2019
3,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Flora Mwenja, suing as representative of the estate of Ezekiel Ngure Mwenja (deceased), moved the Court by Notice of Motion dated 1st April 2019 seeking an order of mandamus compelling the Land Settlement Fund Board Trustees and the Director of Land Adjudication and Settlement to issue an allotment letter and/or title documents over Plot No. 713 Mawingo Salient Settlement Scheme. She contended that the deceased applied for the land in 1985, paid the requisite deposit, took possession, built dwellings and farmed the land, and that the 2nd and 3rd Respondents had by letters of 25th November 2013 and 1st July 2015 confirmed compliance with all conditions for issuance of an allotment letter, yet the documents were never issued, contrary to Articles 10 and 60(1) of the Constitution and Section 134 of the Land Act. The Respondents filed no response. The court identified a single issue: whether the Applicant was entitled to the remedies sought. It found the application res judicata, the deceased having sued the same parties over the same plot in E M Ngure v District Land Adjudication and Settlement Nyandarua & 2 Others [2017] eKLR, where his claim for a declaration of ownership and transfer was dismissed for insufficient evidence of allotment. Section 7 of the Civil Procedure Act barred relitigation and ousted the court's jurisdiction. In the alternative, the court held that mandamus lies only to compel performance of a public or statutory duty owed to a party with a legal right; since there was no evidence an allotment letter had ever been issued, compliance with its conditions could not be established. The Notice of Motion was dismissed with no order as to costs.

Key legal issues

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01

Whether the judicial review application is res judicata

Holding

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

Reasoning

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.

p. 3
02

Whether in any event the Applicant was entitled to mandamus

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 1st April 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10 and 60(1)
  • Fair Administrative Actions ActSections 3, 4, 7, 9 and 11
  • Land Act, Act No. 6 of 2012Sections 7, 134(6), 134(7), 134(8) and 135(1)(c)
  • Agriculture ActSection 174
  • Civil Procedure Act Cap 21Section 7
  • Limitations of Actions ActSection 7

Cases cited (8)

  • Kenya National Examinations Council vs. Republic of ex parte Geoffrey Gathenji Njoroge & Others [1977] eKLR
  • E M Ngure v District Land Adjudication and Settlement Nyandarua & 2 Others [2017] eKLR
    [2017] eKLR
  • James Njuguna Chui vs John Njogu Kimani [2017] eKLR
    [2017] eKLR
  • Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] eKLR
    [1997] eKLR
  • The Commissioner of Lands vs. Kunste Hotel Ltd [1997] eKLR
    [1997] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996
    Civil Appeal No. 266 of 1996
  • Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another Kisumu HCCA No. 9 of 2004
    Kisumu HCCA No. 9 of 2004
  • Anthony John Dickson & Others vs. Municipal Council of Mombasa Mombasa HCMA No. 96 of 2000
    Mombasa HCMA No. 96 of 2000
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

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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, "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.