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ELCDismissedJudicial Review Ex-parte Chamber Summons application dated 4th May 2015; substantive Notice of Motion dated 22nd June 2015· [2020] KEELC 3622 (KLR)

Republic v County Government of Meru & 3 others; Evangeline T. Arithi & another (Interested Parties) Ex Parte Jeremiah M’njogu M’turugoji [2020] KEELC 3622 (KLR)

Environment and Land Court
10 February 2020
ECE.C. CheronoLML.N. Mbugua
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A plot owner's bid to force Meru County to approve development plans failed because the land was already private and ownership documents were missing.

What this practically means

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Executive summary

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The Ex-parte Applicant sought leave and subsequently filed a substantive motion under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act for an order of mandamus compelling the County Government of Meru, through the County Land Management Board, to recommend approval of Part Development Plans for Plots MERU MUNICIPALITY BLOCK 11/792 and BLOCK 11/793 to the Director of Physical Planning. He claimed to be an owner of the plots and asserted that despite repeated requests, the County Government refused or failed to forward the PDPs for approval; the Interested parties, co-allottees, partnered with him to meet survey and registration costs. The 1st Respondent opposed the motion, arguing that the National Land Commission is an independent commission managing public land under Article 67 of the Constitution and that County Land Management Boards are creatures of Section 18 of the National Land Commission Act; the relief sought against it was untenable. The court applied the Kenya National Examination Council mandamus principles, holding that mandamus only compels statutory public duties. It found the suit parcels had been alienated into private land before the Board's guidelines were gazetted, the Board had been repealed by Act No. 26 of 2016, and the repealed Board could only recommend a lease after the PDP and RIM had been approved by the Director of Surveys - processes not demonstrated. The Applicant also failed to provide ownership documents such as allocation minutes, an approved PDP and an approved RIM. The motion was dismissed with costs.

Key legal issues

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01

Whether mandamus could issue to compel recommendation of approval of the Part Development Plans

Holding

The application failed; the Respondents were not shown to have failed in any public duty and the Applicant had not supplied the documents needed for processing

Reasoning

The court adopted the Kenya National Examination Council test that mandamus enforces statutory public duties. The suit parcels had been alienated into private land before the County Land Management Board guidelines were gazetted, the Board created under Section 18 of the NLC Act had been repealed by Act No. 26 of 2016, and the repealed Board could only recommend a lease after the PDP and RIM had been processed and approved by the Director of Surveys - processes not demonstrated. The Applicant also bore the duty of providing evidence of ownership such as allocation minutes, approved PDP and approved RIM.

p. 3
02

Whether the subject parcels remained public land within the mandate of the County Land Management Board

Holding

No - the parcels had been alienated into private land by the time the Board's guidelines were gazetted

Reasoning

The court found that although the County Land Management Board was established under Section 18 of the National Land Commission Act to manage public land and process development applications, the parcels in these proceedings were not public land at the relevant time. Hence the Board owed no public duty in respect of them, and mandamus - which enforces public duties - could not issue against the Respondents.

p. 3

Legal principles established

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  • Mandamus compels performance of a public duty imposed by statute where the duty-holder has failed to perform it to the detriment of a party with a legal right to its performance
  • A mandamus will not lie against a party who is not bound to perform a public duty, particularly where an alternative, more convenient and effective legal remedy exists
  • A mandamus must command no more than what the party against whom it is sought is legally bound to perform

Court orders

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  1. 1.The Notice of Motion dated 22nd June 2015 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2, 3 & 4
  • Law Reform ActSections 8 & 9
  • Constitution of Kenya, 2010Article 67(1) and 67(2)
  • National Land Commission ActSections 18(1) and 9(a); Section 18 as repealed by Act No. 26 of 2016

Cases cited (1)

  • Kenya National Examination Counsel Vs Republic, Ex-parte Geoffrey Gathenji & 9 others
    Nairobi Civil Appeal No. 266 of 1996
Jurisdiction invoked
Order 53 Rules 1, 2, 3 & 4 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act Cap. 26 Laws of Kenya (judicial review for mandamus)

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 County Government of Meru & 3 others; Evangeline T. Arithi & another (Interested Parties) Ex Parte Jeremiah M’njogu M’turugoji [2020] KEELC 3622 (KLR)", Case Analysis (2020). Judicial Review Ex-parte Chamber Summons application dated 4th May 2015; substantive Notice of Motion dated 22nd June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3622/eng@2020-02-10

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