Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review application (Chamber Summons dated 25th April 2018)· [2020] KEELC 3519 (KLR)

David Otieno Ohando v Henry Opiyo Akama & 2 others [2020] KEELC 3519 (KLR)

Environment and Land Court
21 February 2020
1,704 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Applicant sought, by ex-parte Chamber Summons dated 25th April 2018, leave (already granted on all other prayers) to operate as a stay of implementation of the 3rd Respondent's decision following a boundary survey of parcels NORTH GEM/MALANGA 11132 and 1117 under Sections 18 and 19 of the Land Registration Act. The application was determined on written submissions. The Applicant argued that without a stay his constitutional property rights would be breached and the substantive judicial review rendered nugatory, contending the survey wrongly applied a new 32-metre National Road Reserve instead of the 1986 20-metre width and failed to address the disputed Northern boundary. The 1st Respondent countered that stay is discretionary, the decision was already implemented, an alternative remedy exists under Section 86 of the Land Registration Act, and public interest weighed against a stay. Ombwayo J framed two issues: the threshold for leave to operate as a stay, and whether the prayer should be granted. Relying on Taib v Minister for Local Government and Republic v County Council of Kiambu (citing Factortame No.2), the court held the threshold is high and requires a prima facie case. On the facts, the beacons were fixed on 19th April 2018 before the application, so both the decision and its implementation were complete; the survey corresponded with the mutation signed by the Applicant; and no evidence showed a change in the Road Reserve width. The prayer for leave to operate as a stay was refused and the application dismissed with costs.

Key legal issues

#
01

Threshold for leave to operate as stay in judicial review proceedings

Holding

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.

Reasoning

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.

p. 2
02

Whether the prayer that leave operate as a stay ought to be granted

Holding

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.

Reasoning

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.

p. 3

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. 1.Prayer seeking that the leave granted operate as a stay is not granted
  2. 2.The application is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 Rule 4
  • Land Registration ActSection 18
  • Land Registration ActSection 19
  • Land Registration ActSection 86

Cases cited (7)

  • James Mburu Gitau t/a Jambo Merchant v Subcounty Public Health Officer Kiambu County
    [2013] eKLR
  • Jared Benson Kangwana v Attorney General
    Nairobi HCCC No. 446 of 1995
  • R v Capital Markets Authority exparte Joseph Mumo Kivai
  • R (H) v Ashworth Special Hospital Authority
    (2003) 1 WLR 127
  • TAIB A. TAIB V MINISTER FOR LOCAL GOVERNMENT & 3 OTHERS
    [2006] eKLR
  • Republic V County Council Of Kiambu & Another Ex-parte Githunguri Dairy Farmers Co-operative Society
    [2012] eKLR
  • R V SECRETARY OF STATE FOR TRANSPORT EX P. FACTORTAME (NO.2)
    [1991] A.C. 603 HL
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.