Republic v Governor County of Marsabit & another Exparte Hussein Abdalla Hile & another; Al-Ul Suna Mosque & Madrassa (Interested Party) [2020] KEELC 2439 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Marsabit County to finally decide a stalled land transfer application within 120 days or face contempt proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether a decision exists for the court to review
The respondents failed to make a decision at all; the reviewable position is a refusal/non-decision rather than a defective decision
The court observed that ordinarily the impugned decision is availed or its date mentioned, but here the statements and affidavits showed the respondents simply never responded to the applicants' advocate's letter of 21.5.2013 nor made any determination on the transfer application, despite having levied transfer application fees.
Scope of mandamus in compelling a non-deciding public body
Mandamus compels performance of a public duty but the court would only compel the respondent to consider and determine the transfer application, not to effect the transfer
The court could not determine the nature or extent of the applicants' interest in the unregistered plot nor the governing legal regime (community land, adjudication, survey). Compelling consideration gives the applicants a clear response, positive or negative, which they can ventilate in ordinary courts if disputed.
Legitimate expectation and fair administrative action
By levying rates and transfer fees and recognizing the applicants' interests, the respondents created a legitimate expectation that the transfer application would be considered, and failure to respond breached Article 47 and the Fair Administrative Action Act
The applicants relied on Communications Commission of Kenya v Royal Media Services and Pastoli v Kabale District Local Government Council on legitimate expectation, and Article 47 and section 4(1) and 11(1)(f) of the Fair Administrative Action Act on procedural fairness. The court agreed with these principles but required their application to the facts.
Consequences of non-compliance with court directions by respondents and interested party
The respondents' replying affidavits and annexures stood expunged for filing outside court-ordered timelines; the interested party, though aware, neglected to participate
Directions of 5.11.2019 required filings by given timelines with documents filed outside them standing as expunged. The respondents filed their memorandum of appearance and replying affidavit on 27.2.2020 without explanation, and the interested party never filed its replying affidavit or submissions despite an extended deadline.
Legal principles established
#- Mandamus lies to compel a public officer or body that has neglected to act within its legal mandate to perform a public duty
- Where a public body has levied fees and recognized an applicant's interest, a legitimate expectation arises that the application will be considered
- Every person has a right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action
Court orders
#- 1.An order of mandamus issued compelling the respondents to consider the application for transfer of land plot no.227 made by Ahmed Ali Hille
- 2.Respondent granted 120 days compliance period, failing which exparte applicants at liberty to commence contempt proceedings
- 3.Respondent condemned to pay costs of the suit
- Jurisdiction invoked
- Articles 2(1), 22, 23, 47, 165(3) and 232 of the Constitution; section 11(1)(f) of the Fair Administrative Action Act, 2015; judicial review under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Governor County of Marsabit & another Exparte Hussein Abdalla Hile & another; Al-Ul Suna Mosque & Madrassa (Interested Party) [2020] KEELC 2439 (KLR)", Case Analysis (2020). Judicial Review Motion filed 13.8.2013 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2439/eng@2020-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.