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ELCPartially AllowedJudicial Review (ex-parte chamber summons dated 25/10/2019)· [2020] KEELC 2920 (KLR)

Republic v Deputy County Commissioner Buuri East, Meru County & 2 Others; Ex – Parte: Sham Satish Kundalal Wason; Isaac Ngeera & 3 Others ( Interested Parties) [2020] KEELC 2920 (KLR)

Environment and Land Court
30 April 2020
LMLucy N. Mbugua
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won permission to challenge a Ministry of Lands award, but the decision still takes effect while the case proceeds.

What this practically means

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Executive summary

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The ex-parte applicant, Sham Satish Kundanlal Wason, moved the Environment and Land Court at Meru by chamber summons dated 25/10/2019 under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking leave to apply for certiorari to quash a decision and award of the deputy commissioner acting for the Cabinet Secretary in appeal A/C No. 165 of 2018 over Plot No. 3624 in Ruiri/Rwarera Adjudication Section, and for that leave to operate as a stay. The applicant purchased the 9.6-acre plot in 1986; objection proceedings concerning it were dismissed in 2018, but the Cabinet Secretary's appeal decision found the family of Isaac Ngeera should be registered owners. The applicant contended the decision was arbitrary, unsupported by surveyor's evidence, and made by an officer without gazettement under Section 29(4) of the Land Adjudication Act. The court applied the established tests for leave - arguable case, sufficient interest and a public law element - noting the convoluted litigation history of the Ruirii Rwarera area and taking judicial notice of a Court of Appeal matter and consent. Finding the issues serious and fit for further investigation, the court granted leave to apply for certiorari but declined to grant a stay, and directed that costs be in the judicial review. The ruling was delivered electronically under COVID-19 practice directions.

Key legal issues

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01

Whether the applicant established an arguable case warranting leave to apply for certiorari

Holding

Leave was granted; the applicant raised serious issues including the 1st respondent's alleged want of jurisdiction under Section 29(4) of the Land Adjudication Act

Reasoning

The court applied the Waki J and Mativo J tests: arguable case, sufficient interest, public law element. The applicant alleged the deputy commissioner acted arbitrarily and ultra vires, lacking gazettement under Section 29(4) of the Land Adjudication Act, rendering the award a nullity. The court noted the convoluted litigation from Ruirii Rwarera, took judicial notice of the Court of Appeal matter and consent, and found the issues serious and fit for further investigation.

p. 3
02

Whether leave should operate as a stay

Holding

Stay refused

Reasoning

Despite finding the issues arguable, the court exercised its discretion against stay given the numerous and convoluted disputes arising from the Ruirii Rwarera Adjudication Section and the need not to disrupt the administrative process pending full inter partes hearing.

p. 3

Legal principles established

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  • The purpose of leave in judicial review is to filter out frivolous applications and ensure only arguable cases proceed to substantive hearing

Court orders

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  1. 1.Leave is granted to apply for an order of certiorari to remove into the Environment and Land Court and quash the entire undated decision and award by the 1st respondent delivered on 24/09/2019 in appeal to cabinet secretary A/C No. 165 of 2018 over Plot No. 3624 situated in Ruiri/Rwarera Adjudication Section Meru County
  2. 2.Leave does not operate as a stay of the implementation of the decision
  3. 3.Costs shall be in the judicial review

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules (1), (2) and (4)
  • Law Reform Act (Cap 26)Sections 8 and 9
  • Land Adjudication Act (Cap 284)Section 29(4)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Republic v County Council of Kwale & another Ex-Parte Kondo & 57 others
    Mombasa HCMCA No. 384 of 1996
  • Republic v Kenya Revenue Authority, Commissioner Ex parte Keycorp Real advisory Limited
    (2019) eKLR
  • Johnson Mbaabu & Another vs. Mathiu Nabea & 9 Others
    Petition No. 35 of 2016 ELC Meru
Jurisdiction invoked
Order 53 Rules (1), (2) and (4) of the Civil Procedure Rules; Sections 8 and 9 of the Law Reform Act (Cap 26)

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 Deputy County Commissioner Buuri East, Meru County & 2 Others; Ex – Parte: Sham Satish Kundalal Wason; Isaac Ngeera & 3 Others ( Interested Parties) [2020] KEELC 2920 (KLR)", Case Analysis (2020). Judicial Review (ex-parte chamber summons dated 25/10/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2920/eng@2020-04-30

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