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ELCDismissedMisc. Application Number 408 of 2017 (formerly Misc. Application Number 6 of 2012 (JR) Nakuru; formerly Misc. Application No. 65 of 2008 (JR) Kericho; formerly HCM Misc. Application No. 468 of 2007 Nairobi)· [2020] KEELC 1090 (KLR)

Republic v Chairman, CIS-Mara Land Control Board & 9 others Ex parte Reuben Cheruiyot Yegon & another [2020] KEELC 1090 (KLR)

Environment and Land Court of Kenya (High Court)
8 October 2020
3,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to cancel a land subdivision, ruling that ownership and fraud disputes belong in a civil suit, not judicial review.

What this practically means

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Executive summary

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The ex parte applicants sought judicial review orders of certiorari and prohibition to quash consents to subdivide and transfer L.R. No. Cis-Mara/Ilmotiok/195 into eight portions, the resulting mutation and registrations, and to prohibit further dealings on the subdivided parcels. They contended that the Cis-Mara Land Control Board granted consent to subdivide without the knowledge, attendance or consent of all registered proprietors contrary to Section 17 of the Land Control Act; that the Ololulunga Land Control Board lacked territorial jurisdiction over the transfer consents; and that the 7th respondent's own replying affidavit admitted fraudulent signing and impersonation, rendering the transactions nullities. The 5th, 6th, 8th, 9th and 10th respondents argued that the registered proprietors held the land as trustees of Kipkoimet Set Kobor Self Help Group, which authorised the applications, and that the board acted within its jurisdiction. The court, applying Pastoli and Republic v Chairman Amagoro Land Disputes Tribunal, held that judicial review examines process, not merits. Whether the applicants should have signed or appeared is a contested factual question going to the merits; the allegation of territorial jurisdiction failed for want of the gazette notice; and fraud cannot be established on affidavit evidence in judicial review proceedings, especially where ownership itself is disputed. The Notice of Motion dated 22nd May 2007 was dismissed with costs to the 5th, 6th, 8th, 9th and 10th respondents, with no costs awarded to the 1st to 4th respondents or the 7th respondent.

Key legal issues

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01

Whether the 1st respondent acted without jurisdiction under Section 17 of the Land Control Act by not requiring all registered proprietors to attend

Holding

Section 17 is permissive ('may') and whether the applicants should have made or appeared on the application is a contested factual question going to the merits

Reasoning

The court held that Section 17 uses the permissive term 'may'. Determining who was to make the application or appear before the board requires enquiry into who the true proprietors of the suit property are, which is a contested matter of fact going to the merit of the decision, thus falling outside the scope of judicial review.

p. 4
02

Whether the 2nd respondent lacked territorial jurisdiction to grant consent to transfer

Holding

Claim failed; no gazette notice or evidence establishing the board's territorial limits was produced

Reasoning

Under Section 5 of the Land Control Act, a board's geographic jurisdiction is defined by the gazette notice establishing it. The ex parte applicants alleged lack of territorial jurisdiction but put before the court no such evidence, so there was no basis to find the second respondent lacked jurisdiction.

p. 4
03

Whether fraud vitiated the consents and the subdivision process

Holding

Fraud cannot be established on affidavit evidence in judicial review; the proper route is an ordinary civil suit

Reasoning

The court held that fraud must be pleaded, particularised and strictly proven, and carries a higher burden than the balance of probabilities. At the core of the dispute is ownership of the suit property, which judicial review cannot determine. The judicial review route was therefore not proper for the applicants' complaint.

p. 4

Legal principles established

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  • Judicial review deals with the decision-making process, not the merits; it cannot determine ownership of disputed property or contested matters of fact
  • Fraud must be pleaded, particularised and strictly proven; it cannot be established on affidavit evidence alone in judicial review proceedings
  • The grounds for judicial review are illegality, irrationality and procedural impropriety
  • A land control board's geographic jurisdiction is defined by the gazette notice establishing it, and a party alleging lack of territorial jurisdiction must produce that notice

Court orders

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  1. 1.Notice of Motion dated 22nd May 2007 dismissed with costs to the 5th, 6th, 8th, 9th and 10th respondents
  2. 2.No costs awarded to the 1st to 4th respondents and the 7th respondent

Authorities

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Legislation

  • Land Control ActSections 17, 6, 5
  • Constitution of KenyaArticles 23(3), 47(1)
  • Fair Administrative Action ActSections 4, 5(1), 7
  • Land Registration ActSection 28
  • Registered Land Act (Cap 300) (now repealed)

Cases cited (10)

  • Republic v County Government of Kiambu Ex parte Robert Gakuru & another
    [2016] eKLR
  • Republic v Kiambu Land Control Board Ex-Parte Burnaby Properties Limited
    [2006] eKLR
  • Republic v County Government of Mombasa Ex-parte Outdoor Advertising Association of Kenya
    [2014] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Ideal Ceramics Ltd -v- Suraya Property Group Ltd
    HCCC No. 408 of 2016 (unreported)
  • Republic v Chairman Amagoro Land Disputes Tribunal & another Ex-parte Paul Mafwabi Wanyama
    [2014] eKLR
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (orders of certiorari and prohibition; Land Control Act; Fair Administrative Action Act; Articles 23(3) and 47(1) of the Constitution cited by the applicants)

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, "Republic v Chairman, CIS-Mara Land Control Board & 9 others Ex parte Reuben Cheruiyot Yegon & another [2020] KEELC 1090 (KLR)", Case Analysis (2020). Misc. Application Number 408 of 2017 (formerly Misc. Application Number 6 of 2012 (JR) Nakuru; formerly Misc. Application No. 65 of 2008 (JR) Kericho; formerly HCM Misc. Application No. 468 of 2007 Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1090/eng@2020-10-08

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