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ELCAllowedJudicial Review Application (Notice of Motion dated 14th November, 2019)· [2020] KEELC 1244 (KLR)

Republic v District Land Officer, Kilifi & 2 others Ex Parte Mohamedmenza Yama [2020] KEELC 1244 (KLR)

High Court of Kenya
29 September 2020
CYC.K. Yano
1,867 words in judgment
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The bottom line

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Kenya's High Court cancelled a title issued over allocated land because the owner was never heard and the issuing council did not legally exist.

What this practically means

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Executive summary

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The Ex-parte Applicant, Mohamed Menza Yama, moved the High Court by a substantive notice of motion dated 14th November 2019, brought with leave under Order 53 Rule 3 of the Civil Procedure Rules, seeking certiorari to quash the Respondents' decision of 6th March 2013 acknowledging, approving and issuing title over L.R No. 29600, and mandamus compelling the 3rd Respondent to release the title for parcel MADZIMBANI/MITANGONI/PLOT NO. 185 in Kilifi County. The Applicant deposed that he was a beneficiary of the land adjudication section declared on 7th June 2012, was allocated Plot No. 185 and issued a Temporary Plot Certificate on 19th August 2012, and that a non-existent entity, 'Mariakani County Council', unilaterally procured title to L.R No. 29600 which overlapped his plot, without his participation. The 3rd Respondent, through the Chief Land Registrar Edwin Wafula, did not oppose the application and confirmed the Applicant's adjudication and allocation. Adopting Lord Diplock's tripartite grounds of illegality, irrationality and procedural impropriety, the court found the Applicant was never afforded a hearing before the decision affecting his interest, breaching natural justice, and that the alienating entity did not exist in law, the existing body being the 'Town Council of Mariakani'. Accordingly, all actions taken in breach of natural justice were null and void. The court granted certiorari quashing the impugned decision and mandamus directing release of the title for Plot No. 185, and, the Respondents not opposing, ordered each party to bear their own costs. Delivered electronically at Mombasa on 29th September 2020 by C.K. Yano, Judge.

Key legal issues

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01

Whether certiorari should issue to quash the registration and issuance of title to L.R No. 29600

Holding

Certiorari issues because the decision was made without hearing the Applicant by a non-existent entity, rendering it ultra vires and procedurally improper.

Reasoning

The court found it admitted that the Applicant held a Temporary Plot Certificate over Plot No. 185 following adjudication declared on 7th June 2012. A purported 'Mariakani County Council' — when the entity in existence was the Town Council of Mariakani — unilaterally set apart and caused title to L.R No. 29600 which overlapped the Applicant's plot. The Applicant was never heard, breaching natural justice, so the impugned decision was null and void and quashed.

p. 2
02

Whether mandamus should issue to compel release of the title for Plot No. 185

Holding

Mandamus issues because the 3rd Respondent's duty to release the title is clearly established and unopposed.

Reasoning

Applying the principle that mandamus is granted only where the officer's duty to act is clearly established and peremptory, the court found that the Respondents themselves confirmed the Applicant was legally allocated Plot No. 185 and issued a Temporary Plot Certificate awaiting title. The Registrar did not oppose the application, so the peremptory duty was plainly established and mandamus issued.

p. 2

Legal principles established

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  • A decision made in breach of the rules of natural justice is null and void, and all actions taken pursuant to it fall with it.
  • Procedural fairness requires that persons likely to be affected by an administrative decision be heard before the decision is taken.
  • Certiorari and prohibition are supervisory remedies against public bodies and inferior tribunals acting ultra vires, irrationally or illegally.

Court orders

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  1. 1.An order of certiorari to quash the decision of the Respondents of 6th March, 2013 acknowledging, approving and issuing title with regard to L.R No. 29600
  2. 2.An order of mandamus directed at the 3rd Respondent to release the title for parcel No. MADZIMBANI/MITANGONI/PLOT NO. 185, KILIFI COUNTY in favour of the Ex-parte Applicant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 53 Rule 3
  • Land Adjudication ActCap 284 Laws of Kenya

Cases cited (4)

  • Council for Civil Service Unions –v- Minister for Civil Service
    1985 AC 374 at 401 D
  • Republic –v- Kenya National Examinations Council ex-parte Geoffrey Gathenyi and others
  • Mwau –V- Principal Immigration Officer
    (1983) KLR
  • Onyango Oloo –v- Attorney General
    (1989) EA 456
Jurisdiction invoked
Sections 1A & 1B of the Civil Procedure Act; Order 51 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules (judicial review under leave granted 28th October, 2019)

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 District Land Officer, Kilifi & 2 others Ex Parte Mohamedmenza Yama [2020] KEELC 1244 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 14th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1244/eng@2020-09-29

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