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ELCAllowedJudicial Review Application (notice of motion dated 18.5.2020, filed 15.6.2020; statutory statement dated 25.10.2019)· [2021] KEELC 461 (KLR)

Republic v Deputy County Commissioner Buuri East, Meru County & 2 others Ex-Parte Sham Satish Kundalah Wason; Isaac Ngeera & 3 others (Interested Parties) [2021] KEELC 461 (KLR)

Environment and Land Court
8 December 2021
2,238 words in judgment
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The bottom line

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Kenya's Environment and Land Court quashed a Minister's land decision because the parties were never given a fair chance to be heard.

What this practically means

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Executive summary

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The exparte applicant, Sham Satish Kundalal Wason, sought an order of certiorari to quash and stay a decision and award made on 24.9.2019 by the 1st respondent (Minister's delegate) in Cabinet Secretary A/C No. 165 of 2018 over Parcel No. 3624 Ruiri/Rwarera Adjudication Section, which allowed an appeal by the interested parties against the dismissal of their objections to his recorded interest of 9.6 acres. He argued the Minister acted arbitrarily, unreasonably and unfairly by relying on a Court of Appeal decision not shared with him, by failing to obtain independent professional surveyor advice, by conducting the locus visit without the parties, and by acting without gazettement. The respondents and interested parties opposed, contending the misconduct was not demonstrated with sufficient clarity, the application offended Order 53, the section was closed, and the Minister lawfully exercised delegated powers under Section 29(4) of Cap 284. The court first expunged a late replying affidavit filed without leave outside court-ordered timelines. On the merits, it framed the issue as what guidelines the Minister should have followed and whether he did. Relying on Article 47 and the Fair Administrative Actions Act 2015, and guided by Suchan Investments and Law Society of Kenya, the court found no evidence the 1st respondent had professional experts on boundaries or accorded all parties an opportunity to be present at the locus and pinpoint their boundaries. The motion succeeded, the decision was quashed, the matter was remitted to the Minister for reconsideration, with costs to the exparte applicant.

Key legal issues

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01

Whether the 1st respondent's decision allowing the appeal against the applicant was procedurally fair and lawful

Holding

The decision was quashed for breach of natural justice and Article 47 / FAJA requirements - no expert surveyor, no evidence all parties were present at the locus in quo or given opportunity to point out boundaries, and reliance on a Court of Appeal decision not shared with the applicant

Reasoning

The court examined the Minister's process against Article 47 and Sections 4(1), 4(4), 7 and 11 of the Fair Administrative Actions Act. The 1st respondent did not show he had professional experts on boundaries or that all parties were present when he visited the scene. Following Suchan Investments, the court does not substitute its own decision but found the process unreasonable and procedurally unfair, warranting certiorari and remission to the Minister for fresh reconsideration.

p. 4
02

Whether documents filed out of time and without leave (Mary Nthiga Ithura's replying affidavit) should be received

Holding

Rejected and expunged

Reasoning

The court had fixed timelines of 24.6.2021 and 24.7.2021 for responses and further affidavits with a hearing date of 12.10.2021. The interested parties' documents filed on 21.10.2021 were outside those timelines and filed without leave, prejudicing other parties, and were therefore expunged.

p. 3

Legal principles established

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  • A judicial officer of an administrative decision must accord persons likely to be affected prior and adequate notice and an opportunity to be heard, per Article 47 and Section 4 of the Fair Administrative Actions Act.
  • On judicial review, the applicant need only raise a reasonable basis to impugn the decision-making process; the burden of showing procedural compliance rests on the decision-maker.
  • In absence of contrary evidence that the decision-maker conducted the boundary visit with expertise and all parties present, the court will find the process fell short of natural justice.

Court orders

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  1. 1.The substantive motion dated 18.5.2020 succeeds
  2. 2.The decision and award of the 1st respondent made on 24.9.2019 in Cabinet Secretary A/C No. 165 of 2018 over Parcel No. 3624 Ruiri/Rwarera Adjudication Section is quashed by way of certiorari
  3. 3.The matter is remitted to the Minister for reconsideration
  4. 4.Costs of the motion to the exparte applicant
  5. 5.The replying affidavit of Mary Nthiga Ithura and related letter/documents filed on 21.10.2021 are rejected and expunged from the record as filed out of time and without leave

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Actions Act, 2015Sections 4(1), 4(4), 7(1), 7(2), 8, 11
  • Civil Procedure RulesOrder 53 rules 1, 2 and 3
  • Cap 284 (Land Adjudication Act)Sections 15 and 29(4)

Cases cited (7)

  • Suchan Investments Ltd –vs- Minister of National Heritage & Culture & 3 Others
    [2016] eKLR
  • Law Society of Kenya –vs- Centre for Human Rights and Democracy & 12 Others
    [2014] eKLR
  • Republic –vs- Land Adjudication Officer Ankamia Adjudication Section & 2 Others Exparte Solomon Mathu Nabea
    [2018] eKLR
  • Republic –vs- Cabinet Secretary Ministry of Lands and Settlement & 2 Others Exparte Gerald Mbuuri Kabugu
    [2018] eKLR
  • Republic –vs- procurement Administrative Review Board & 2 Others Ex-parte Pelt Security Services Ltd.
    [2018] eKLR
  • Johnson Mbaabu Mburugu & Another –s- Mathiu Nabea & 9 Others
    [2020] eKLR
  • Court of Appeal No. 129 of 2005 (Petition No. 35 of 2016, Meru)
Jurisdiction invoked
Article 47 of the Constitution and the Fair Administrative Actions Act 2015 (judicial review jurisdiction of the High Court/ELC)

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 Kundalah Wason; Isaac Ngeera & 3 others (Interested Parties) [2021] KEELC 461 (KLR)", Case Analysis (2021). Judicial Review Application (notice of motion dated 18.5.2020, filed 15.6.2020; statutory statement dated 25.10.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/461/eng@2021-12-08

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