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ELCPartially AllowedJudicial Review Motion filed 13.8.2013 (Meru ELC)· [2020] KEELC 2439 (KLR)

Republic v Governor County of Marsabit & another Exparte Hussein Abdalla Hile & another; Al-Ul Suna Mosque & Madrassa (Interested Party) [2020] KEELC 2439 (KLR)

Environment and Land Court
20 May 2020
2,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The exparte applicants, Ahmed Ali Hille and Hussein Abdalla Hille, filed a judicial review motion on 13.8.2013 seeking mandamus to compel the Governor and County Government of Marsabit to effect transfer of plot no.227 at Manyatta Burji, Moyale, from Ahmed to his nephew Hussein. Ahmed held land rent receipts and a transfer application form dated 19.6.2012 with paid fees, but an objection lodged by the interested party on behalf of Sunna Mosque and Madrassa Manyatta Burji blocked the transfer, and the respondents never responded to an advocate's letter dated 21.5.2013. The respondents and the interested party, despite service and court directions of 5.11.2019, filed documents out of time; the respondents' replying affidavits and annexures were expunged and the interested party filed nothing, so the court determined the matter on the applicants' case alone. The court applied the principles in Municipal Council of Mombasa v Republic & Umoja Consultants and Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, holding that judicial review concerns the decision-making process and that mandamus compels a body that has neglected to act within its mandate. Finding that the respondents had recognized the applicants' interest by levying rates and transfer fees, the court held a legitimate expectation arose that the transfer application would be considered, engaging Article 47 and the Fair Administrative Action Act. However, because the parcel was unregistered and its legal regime unclear, the court declined to order the transfer itself and instead issued mandamus compelling the respondents to consider and determine the transfer application within 120 days, failing which contempt proceedings could issue, with costs awarded to the applicants.

Key legal issues

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01

Whether a decision exists for the court to review

Holding

The respondents failed to make a decision at all; the reviewable position is a refusal/non-decision rather than a defective decision

Reasoning

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.

p. 3
02

Scope of mandamus in compelling a non-deciding public body

Holding

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

Reasoning

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.

p. 4
03

Legitimate expectation and fair administrative action

Holding

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

Reasoning

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.

p. 3
04

Consequences of non-compliance with court directions by respondents and interested party

Holding

The respondents' replying affidavits and annexures stood expunged for filing outside court-ordered timelines; the interested party, though aware, neglected to participate

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 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. 2.Respondent granted 120 days compliance period, failing which exparte applicants at liberty to commence contempt proceedings
  3. 3.Respondent condemned to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(1), 22, 23, 47, 165(3), 232(1)
  • Civil Procedure ActSection 1A(3)
  • Civil Procedure RulesOrder 53; Order 21 rule 1
  • Fair Administrative Action Act, 2015Section 4(1); Section 11(1)(f)

Cases cited (14)

  • Communication Commission of Kenya vs Royal Media Services Limited
    (2014) eKLR
  • Pastoli vs Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Martin Nyaga Wambora vs Speaker of the Senate
    (2014) eKLR at 151
  • Judicial Service Commission vs Mbalu Mutava
    (2015) eKLR
  • David Oloo Onyango vs Attorney General
    (1987) eKLR
  • Republic vs County Director of Education, Nairobi & 4 Others Exparte Abdukadir Elmi Robleh
    (2018) eKLR
  • Msagha vs Chief Justice & 7 Others
    Nairobi HCMCA No. 1062 of 2004 {2006} 2 KLR 553
  • Republic vs Ambrose Odwaya O Onyango & Another Exparte Caesar Ngige Wanjao
    {2014}
  • Republic vs Kenya National Highways Authority Exparte John Mwaniki Kiarie
    (2016) eKLR
  • Primrose Management Limited vs Chairman of the Business Premises Rent Tribunal, Nairobi & Another
    (2015) eKLR
  • Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic vs The Registrar of Companies Ex Parte Transglobal Freight Logistics Limited
    Nairobi HCMA No. 711 of 2005
  • Geothermal Development Limited vs Attorney General and 3 Others
    (2013) eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
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

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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 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.