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ELCAllowedMisc Application No 38 of 2019· [2020] KEELC 3383 (KLR)

Leseru Tebeson Farmers Society v Director of Surveys & another [2020] KEELC 3383 (KLR)

High Court of Kenya
5 February 2020
SKS. M. Kibunja
544 words in judgment
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The bottom line

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Kenya's High Court froze changes to disputed land survey plans, confirming that judicial review leave can preserve the status quo on land until a full hearing.

What this practically means

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Executive summary

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Leseru Tebeson Farmers Society sought leave, by chamber summons dated 7th October 2019, to apply for orders of certiorari and prohibition, with leave to operate as stay. Leave was granted ex-parte on 7th October 2019, with directions to serve the Director of Surveys and the Registrar of Titles Nairobi and the Attorney General, and an inter-partes hearing was fixed on whether leave would operate as stay. The Attorney General filed grounds of opposition contending that the application was misconceived, that no decision complained of had been annexed, and that the orders sought fell outside the scope of judicial review, relying on the Sanitam Services case. In a ruling delivered at Eldoret on 5th February 2020, S. M. Kibunja J framed a single issue: whether the applicant had made a reasonable case for leave to operate as stay. The court found that the applicant's complaint was that the 1st Respondent amended survey plan F.R. No. 405/96 by superimposing L.R. No. 27206/5 over the applicant's parcels L.R. 27206/3 to 4 without a hearing. Contrary to the respondents' submission, the applicant had annexed the survey plans containing the impugned decision, and their authenticity was not disputed. Holding it fair and just to preserve the status quo obtaining at filing, the court allowed prayer 3 and granted leave to operate as stay pending the substantive application.

Key legal issues

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01

Whether leave granted to apply for prerogative orders should operate as stay

Holding

Yes - the applicant made out a reasonable case for leave to operate as stay; the status quo at filing is to be maintained pending the substantive motion.

Reasoning

The applicant's complaint was that the 1st Respondent amended survey plan F.R. No. 405/96 by superimposing L.R. No. 27206/5 over its two parcels without a hearing. The applicant annexed the survey plans embodying the impugned decision, refuting the ground that no decision had been attached. Since leave for certiorari and prohibition had been granted and the authenticity of the annexed plans was undisputed at the inter-partes hearing, fairness required preservation of the status quo.

p. 1

Legal principles established

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  • Where leave to apply for certiorari and prohibition has been granted and the authenticity of the impugned decision is not disputed, it is fair and just that the status quo as at filing be maintained pending the substantive application.

Court orders

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  1. 1.Prayer 3 of the chamber summons dated and filed on 7th October 2019 granted - the leave granted to operate as stay
  2. 2.Status quo obtaining at the time of filing the application in respect of L.R. 27206/3 to 4 be maintained pending the hearing and determination of the substantive application

Authorities

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Cases cited (1)

  • Republic Vs Public Procurement Administrative Review Board & 2 Others Ex-parte Sanitam Services (E.A.) Limited
    (2013) eKLR
Jurisdiction invoked
Judicial review jurisdiction - leave to apply for orders of certiorari and prohibition (Law Reform Act, ss. 8-9, implied; not expressly cited)

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, "Leseru Tebeson Farmers Society v Director of Surveys & another [2020] KEELC 3383 (KLR)", Case Analysis (2020). Misc Application No 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3383/eng@2020-02-05

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