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ELCOtherJudicial Review Application (Notice of Motion dated 17th October 2019)· [2021] KEELC 1800 (KLR)

Republic v Director of Surveys & 2 others Ex parte Equity Bank (Kenya) Limited; Solomon Weru Thea (Interested Party) [2021] KEELC 1800 (KLR)

Environment and Land Court
30 September 2021
3,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused a bank's bid to reverse land survey changes because the neighbouring landowner affected by the dispute was never included in the case.

What this practically means

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Executive summary

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Equity Bank Kenya Limited, as chargee of L.R Ruiru/Mugutha Block 1/T2210 registered on 23rd November 2012, moved the Environment and Land Court at Thika by Notice of Motion dated 17th October 2019 seeking orders of prohibition against further alteration of survey records, certiorari to quash the decision to alter the Registry Index Map Sheet No. 8 (allegedly amalgamating the suit property into parcels 625 and 626 without the chargee's consent), and mandamus compelling the Kiambu County Surveyor and Director of Surveys to restore the survey records. The Respondents denied any amalgamation, contending that what occurred was a change of common boundary between L.R 1/T2210 and L.R 1/T2211 effected on 20th December 2010 upon an approved mutation by the two registered owners, resulting in new numbers 6255 and 6256. The Court framed two issues: whether the judicial review threshold was met, and whether the application was merited. Applying the settled principles that judicial review concerns process and requires illegality, irrationality or procedural impropriety, the Court found it could not determine the matter because Hannah Wangari, the owner of L.R 1/T2211 whose interests would be affected, was not joined. Holding that non-joinder cannot defeat a suit, the Court halted determination of the application and ordered the Ex-parte Applicant to join Hannah Wangari so the real issues could be determined after she is heard. No costs order was made.

Key legal issues

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01

Whether the thresholds for certiorari, prohibition and mandamus were met

Holding

The Court could not determine the merits of the judicial review application because an indispensable party, Hannah Wangari (owner of L.R 1/T2211), was not joined; her rights would be directly affected by any orders altering the survey records

Reasoning

The change of common boundary involved two parcels owned by two different persons. Only Solomon Weru Thea, owner of L.R 1/T2210, was enjoined. Any orders would affect the rights of the owner of L.R 1/T2211, and the Court could not know whether she handed over her title deed unless she was heard. Non-joinder cannot defeat a suit, so the Court halted determination and ordered joinder.

p. 4
02

Whether the alteration of the Registry Index Map constituted an unlawful amalgamation made without the chargee's involvement

Holding

Not determined; the Court confined itself to the procedural question of joinder

Reasoning

The Respondents denied amalgamation, contending there was a change of common boundary effected on 20th December 2010 upon an approved mutation by the two registered owners. The Court held it could not adjudicate this dispute without the second owner before it, so the substantive question remains open.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Judicial review orders issue only where a decision is tainted with illegality, irrationality or procedural impropriety
  • Natural justice requires that a party who will be affected by orders sought in judicial review proceedings be given an opportunity to be heard, and non-joinder cannot defeat a suit

Court orders

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  1. 1.The Ex-parte Applicant to enjoin or join Hannah Wangari as a party to the suit so that the real determination of the issues in controversy can be made after she has been given an opportunity to be heard
  2. 2.Determination of the Notice of Motion dated 17th October 2019 halted pending the joinder

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 10 Rules 2 and 4

Cases cited (5)

  • Municipal Council of Mombasa Vs Republic Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR
  • Pastoli Vs Kabale District Local Government Canal & Others
    (2008) 2 EA 300
  • Al-Mehidswi Vs Secretary of State for the Housing Department
    (1990) AC 876
  • Kenya National Examination Council Vs Republic Exparte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No.266 of 1996
  • Local Building and Construction Limited Vs Institute of the Blessed Virgin Mary Loreto Msongari & 2 others
    [2019] eKLR
Jurisdiction invoked
Original judicial review jurisdiction of the Environment and Land Court over certiorari, prohibition and mandamus in respect of survey records (orders sought under judicial review practice and procedure)

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 Director of Surveys & 2 others Ex parte Equity Bank (Kenya) Limited; Solomon Weru Thea (Interested Party) [2021] KEELC 1800 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 17th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1800/eng@2021-09-30

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