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ELCDismissedJudicial Review application, Notice of Motion dated 29th December 2017 (Kisii High Court)· [2021] KEELC 1688 (KLR)

Republic v Ministry of Lands, Housing & Urban Development & 4 others Ex-Parte Osoro Kennedy Omwoyo; Jeremiah Otieno Okenye (Interested Party) [2021] KEELC 1688 (KLR)

High Court of Kenya
28 September 2021
JOJ.M Onyango
5,504 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner failed to prove two disputed plots were public utility land, so the High Court dismissed his judicial review challenge to their allocation.

What this practically means

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Executive summary

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The Ex-parte Applicant, a registered owner of a plot within Gesima Settlement Scheme, sought judicial review orders of Certiorari, Prohibition and Mandamus to quash and restrain the allocation of parcels Nos. 812 and 813 Gesima Settlement Scheme to the Interested Party, contending that the two plots had been set aside as a cattle dip and water catchment area for public use. The Interested Party denied the existence of the two plots, relying on his 1964 letter of allotment and 2003 title for parcel No. 45 measuring 8.3 hectares, and relied on a prior judgment in Kisii ELC Case No. 38 of 2007 which had found no proof of the utility plots. The Respondents filed no response. The court framed five issues, including whether the plots were public utility plots, whether the Applicant had a legitimate expectation, and whether the plots were available for alienation. The court found the Applicant's documentary evidence insufficient: the 1964 Development Plan lacked an index designating the plots as public utilities, the 1985 map did not depict them, photographs lacked certificates under section 106B of the Evidence Act, and the Respondents' silence deprived the court of expert evidence. The doctrine of legitimate expectation did not apply absent proof of public land. Applying the KNEC v Republic principles, the court held Prohibition could not address past wrongs, Mandamus could not compel acts outside the Respondents' powers, and Certiorari was unfounded absent proof of excess of jurisdiction or breach of natural justice; allegations of fraud belonged in an ordinary civil suit. The Notice of Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether plots 812 and 813 were public utility plots

Holding

The court found no proof that the plots existed as public utility plots

Reasoning

The Development Plan of 22nd December 1964 marked the plots but carried no index describing them as public utility plots; the custodian ministries filed no response explaining their status; the 1985 map did not depict the plots and its index recorded no amalgamation, only the sub-division of parcel 45 into parcels 561-565. Documentary proof was therefore insufficient.

p. 6
02

Whether the Applicant had a legitimate expectation

Holding

The doctrine of legitimate expectation did not apply

Reasoning

Legitimate expectation protects a person's expectation of receiving a benefit or privilege from a public authority. Judicial review would have protected the Applicant's expectation to the facilities on plots 812 and 813 only had he demonstrated the plots were public land, which he failed to do; the doctrine therefore fell away.

p. 6
03

Availability of the judicial review remedies sought

Holding

Certiorari, Prohibition and Mandamus could not issue

Reasoning

Prohibition is prospective and cannot address wrongs committed decades ago; Mandamus cannot compel Respondents to perform acts they have no power to do; Certiorari requires proof that a decision was made without or in excess of jurisdiction or in breach of natural justice, none of which was demonstrated on the material before the court.

p. 7

Legal principles established

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  • The party alleging that land was reserved as a public utility bears the burden of proving that reservation; without proof, judicial review remedies will not issue
  • Prohibition cannot quash a decision already made; it only prevents a contemplated decision
  • Allegations of fraud in the acquisition of land are not amenable to judicial review and should be pursued in an ordinary civil suit

Court orders

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  1. 1.The Notice of Motion dated 29th December 2017 is dismissed
  2. 2.Each party shall bear his own costs
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act

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 Ministry of Lands, Housing & Urban Development & 4 others Ex-Parte Osoro Kennedy Omwoyo; Jeremiah Otieno Okenye (Interested Party) [2021] KEELC 1688 (KLR)", Case Analysis (2021). Judicial Review application, Notice of Motion dated 29th December 2017 (Kisii High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1688/eng@2021-09-28

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