Philip Osok Awinyo v National Land Commission & another [2020] KEELC 60 (KLR)
The bottom line
#A buyer of unlawfully allocated public land in Kenya can recover his money with interest, but cannot force the government to give him the land itself.
What this practically means
#Executive summary
#Key legal issues
#Availability of the suit land for allocation
The suit property was Government/public land within Government staff quarters and was not available for allocation
The respondents contended, and the court accepted, that the property was Government Land committed to residential use as staff houses for civil servants. The department of the Kisumu County Council acted beyond its jurisdiction in allocating land under the Government Land Act as it then was. Consequently the whole allocation process was a nullity and no land existed to be allocated to the applicant.
Whether the applicant had a legitimate expectation to allocation or alternative allocation
The alleged expectation was not legitimate because the land was not available for allocation and public interest outweighed private interest
Applying Wade & Forsyth, the court held that an expectation must be founded on a promise or practice by the public authority and must be within the powers of the decision-maker. An expectation whose fulfilment requires an unlawful decision cannot be legitimate. Since the allocation was a nullity, the applicant's expectation to be allotted land or alternative land and titles was not legitimate.
Whether mandamus lies against the respondents
Mandamus cannot issue to compel an authority to act against the law; the prayers for mandamus were rejected
Relying on the National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge principles, mandamus commands only what the party is legally bound to perform and cannot require a duty to be carried out in a specific way where discretion is left to the party. Since allotment of the suit land would be unlawful, the court could not compel the respondents to allot alternative plots or titles.
Remedies properly available to the applicant
The applicant was entitled only to a refund of monies paid for the plots with interest at court rates, and rates paid, jointly and/or severally
Although the declaratory and mandamus orders failed, the court found the applicant entitled to restitution of sums paid for the respective parcels, with interest at court rates from the date of filing the judicial review application, and repayment of rates paid by the respondents jointly and/or severally, with the Deputy Registrar to assess the records.
Legal principles established
#- Mandamus cannot be used to compel a public authority to act unlawfully or perpetuate an illegality
- An expectation whose fulfilment requires an unlawful decision cannot be a legitimate expectation
- A mandamus requires a legal right to performance of an imperative public duty and commands no more than the party is legally bound to perform
Court orders
#- 1.The respondents to refund the applicant the sums paid for the respective parcels of land with interest at court rates from the date of filing the judicial review application
- 2.The respondents, jointly and/or severally, to pay back the applicant all monies paid as rates
- 3.The Deputy Registrar to assess the records for purposes of establishing the amount refundable
- 4.Each party to bear own costs
- Jurisdiction invoked
- Articles 22(1), 23(3)(a),(e),(f),(j),(k) & (m), 2(a) & (e) of the Constitution of Kenya 2010; Sections 4(1), 7(1)(a), 2(c),(e),(f),(j),(k) & (m), 9, 10 & 11 of the Fair Administrative Action Act, 2015; Order 53 Rule 3 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Osok Awinyo v National Land Commission & another [2020] KEELC 60 (KLR)", Case Analysis (2020). ELC Judicial Review Application No. 50 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/60/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.