David Kiprugut Cheruiyot v Land Control Board of Belgut [2021] KEELC 1456 (KLR)
The bottom line
#A Kenyan Land Control Board cannot verbally refuse land consent without written reasons, and a court can compel it to decide properly.
What this practically means
#Executive summary
#Key legal issues
#Whether the application met the threshold for leave to apply for judicial review
Leave was granted as the Applicant demonstrated an arguable case fit for further consideration
Applying Order 53 Rule 1 CPR and the Kondo test, the court found that on the material available there was an arguable case fit for further investigation at a full inter partes hearing. The Respondent, though served, filed neither a response nor submissions, leaving the application unopposed. The purpose of the leave stage is to eliminate frivolous, vexatious or hopeless applications without a depth examination.
Whether the Respondent's verbal refusal of consent without written reasons was lawful
It was un-procedural and unlawful, contrary to Section 16 of the Land Control Act and Article 47 of the Constitution
Section 16 of the Land Control Act imposes a statutory duty on the Board to give decisions in writing stating reasons for any refusal, and Section 5(1) of the Fair Administrative Actions Act read with Article 47 of the Constitution requires public authorities to give written reasons for decisions adversely affecting a person. A verbal refusal with no reasons breached these provisions and constituted a failure to exercise statutory discretion justiciable by the court.
Whether the court could compel the Board to grant the consent by Mandamus
No; Mandamus could only compel the Board to consider the application and give reasons for any adverse decision
The Applicant conceded, and the court agreed, that Mandamus cannot force a discretionary decision-maker to arrive at a particular outcome. It can, however, compel the decision-maker to exercise its discretion. Where a decision-maker fails to give reasons within the directed period, the Respondent is deemed to have no reasons, whereupon Mandamus will issue compelling issuance of the consent.
Whether the function of the Land Control Board is amenable to judicial review
Yes, because it exercises a statutory public function
Following Datafin, amenability to judicial review turns on whether the matter arises from a public function; where the source of the power is legislation, that is a strong indicator of amenability. The Board's power under Section 6(1) of the Land Control Act, which renders transactions over agricultural land void absent consent, is a statutory public power and therefore reviewable.
Legal principles established
#- Every decision of a Land Control Board must be given in writing, and where consent is refused, reasons for the refusal must be stated in the decision
- A verbal refusal to grant land control consent without written reasons is un-procedural and contrary to Section 16 of the Land Control Act and Article 47 of the Constitution
- Leave to apply for judicial review is granted where, without going into the matter in depth, the court considers there is an arguable case fit for further investigation at a full hearing
- The court may not compel by Mandamus the issuance of a land control consent, but may compel the decision-maker to consider the application and give reasons for an adverse decision
Court orders
#- 1.Leave granted; order of Mandamus granted compelling the Respondent to consider the Applicant's application for consent and give reasons if the decision is adverse, within 30 days from service of the order
- 2.In default of such reasons, the Respondent shall be deemed to have no reasons, whereupon an order of Mandamus shall issue compelling the Respondent to issue the consent
- 3.Prayer for Certiorari refused as there is no competent decision capable of being quashed
- 4.No order as to costs
- Jurisdiction invoked
- Order 53 Rules 1(1) & 2 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiprugut Cheruiyot v Land Control Board of Belgut [2021] KEELC 1456 (KLR)", Case Analysis (2021). Chamber Summons dated 24th May 2021 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1456/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.