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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st respondent's decision allowing the appeal against the applicant was procedurally fair and lawful
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
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.
Whether documents filed out of time and without leave (Mary Nthiga Ithura's replying affidavit) should be received
Rejected and expunged
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.
Legal principles established
#- 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
#- 1.The substantive motion dated 18.5.2020 succeeds
- 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.The matter is remitted to the Minister for reconsideration
- 4.Costs of the motion to the exparte applicant
- 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
- Jurisdiction invoked
- Article 47 of the Constitution and the Fair Administrative Actions Act 2015 (judicial review jurisdiction of the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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
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