David Otieno Ohando v Henry Opiyo Akama & 2 others [2020] KEELC 3519 (KLR)
The bottom line
#The Environment and Land Court refused to pause a completed land boundary decision, confirming courts rarely stop public bodies after implementation is done.
What this practically means
#Executive summary
#Key legal issues
#Threshold for leave to operate as stay in judicial review proceedings
The grant is a judicial discretion to be exercised judiciously; the threshold is high, requiring a prima facie case so firmly based that the exceptional course of restraining a public authority is justified.
Relying on Order 53 Rule 4 and on Taib v Minister for Local Government (Maraga J) and Republic v County Council of Kiambu (Korir J) adopting Lord Goff in Factortame (No.2), the court held that a stay is meant to prevent a decision-maker continuing with decision-making or to suspend implementation of a decision taken, and courts will be reluctant to suspend operation unless irreparable harm is shown.
Whether the prayer that leave operate as a stay ought to be granted
No - the 3rd Respondent's decision and its implementation were complete before the application was brought, no prima facie case was presented, and the application would not be rendered nugatory without a stay.
Beacons were fixed on 19th April 2018, before the application. The survey found the boundaries on the ground corresponded with the mutation signed by the Applicant, and the Registrar acted within Sections 18 and 19 of the Land Registration Act. The Applicant adduced no evidence of an alleged change in the National Road Reserve width. If he later proves his case, a resurvey can rectify the boundaries.
Legal principles established
#- A stay in judicial review proceedings is only appropriate to restrain a public body from acting, and the threshold for granting it is high.
- Leave to operate as a stay should not issue where the decision under challenge has already been fully implemented and the remedy sought can still be granted effectively.
Court orders
#- 1.Prayer seeking that the leave granted operate as a stay is not granted
- 2.The application is dismissed with costs
- Jurisdiction invoked
- Order 53 Rule 4 of the Civil Procedure Rules; Sections 18 and 19 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Otieno Ohando v Henry Opiyo Akama & 2 others [2020] KEELC 3519 (KLR)", Case Analysis (2020). Judicial Review application (Chamber Summons dated 25th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3519/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.