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ELCPartially AllowedNotice of Motion dated 27th February 2020 (Judicial Review)· [2021] KEELC 2175 (KLR)

Republic v Land Surveyor, Uasin Gishu County & another Ex Parte Nathan Songok & 7 others [2021] KEELC 2175 (KLR)

Environment and Land Court (High Court jurisdiction over judicial review of survey office)
23 August 2021
2,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ordered survey officials to explain their inaction or conduct a paid-for survey, confirming verbal refusals by public officers can be challenged.

What this practically means

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Executive summary

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The Ex Parte Applicants, registered proprietors of LR No. Uasin Gishu/Jabali/97 measuring approximately 33.9 hectares, sought judicial review orders of certiorari and mandamus against the survey offices for verbally refusing to conduct a survey to establish boundaries and beacons, and failing to resolve a boundary dispute with adjacent landowners, despite paying survey fees of Kshs. 17,400.00 on 7th October 2018 and dispute resolution fees of Kshs. 5,000.00 on 2nd August 2019. They argued the refusal without a hearing violated Articles 50 and 47 of the Constitution. The Respondents opposed, contending there was no published decision capable of being quashed and that no decision was attached as required by Order 53 Rule 7(1). The court framed two issues: whether a verbal refusal to act falls within judicial review, and whether the applicants deserved the orders sought. Relying on the Gathenji principles on mandamus, and adopting the reasoning in John Kipkoech Rotich that a verbal administrative decision can be quashed and that public bodies cannot rely on the unwritten state of their own decision to defeat review, the court held that public officers have a non-discretionary duty to perform statutory mandates without being begged. Finding the refusal proved by payment receipts, the court granted mandamus compelling the respondents to give reasons for their inaction within 14 days, failing which they must carry out the survey within 30 days. The certiorari limb was not granted in terms, and each party was ordered to bear its own costs. Judgment delivered at Eldoret on 23rd August 2021 by M. A. Odeny, J.

Key legal issues

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01

Whether a verbal refusal by public officers can be challenged by way of judicial review despite the requirement under Order 53 Rule 7(1) to attach the decision

Holding

Yes. The court adopted the reasoning in John Kipkoech Rotich that defeating a judicial review claim merely because the decision was verbal is unjust, and that the court's inherent jurisdiction saves such claims.

Reasoning

The court relied on the inherent jurisdiction saved by section 3A of the Civil Procedure Act. It reasoned that public servants who give verbal refusals to act should not escape accountability through the unwritten nature of their decisions, as this would create a mischief of one person's word against another's. The refusal was proved by receipts for payment of survey and boundary dispute fees and an application form.

p. 3
02

Whether the respondents were under an enforceable public duty to survey the suit land and resolve the boundary dispute

Holding

Yes. Having paid the requisite fees, the applicants had a legal right to expect the survey office to perform its statutory mandate, and mandamus lies to compel it.

Reasoning

The court held that the respondent is under a duty to carry out surveys and put beacons on boundaries according to law and regulations. The applicants paid survey fees of Kshs. 17,400.00 and boundary dispute resolution fees of Kshs. 5,000.00, yet nothing was done and no reasons were given for the refusal to act. Mandamus is the proper remedy to compel performance of such a public duty.

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03

Whether the respondents' inaction violated Articles 47 and 50 of the Constitution

Holding

The respondents' failure to give written reasons for their refusal breached the Article 47 right to fair administrative action.

Reasoning

Following Agricultural Finance Corporation v Land Control Board of Loitokitok, the court found that where a decision is verbal and no reasons are given, it is procedurally improper; Article 47 obliges public bodies to give decisions in writing with reasons. The respondents gave no reason for their refusal to act, and this failure underpinned the court's willingness to grant relief despite the verbal nature of the decision.

p. 4

Legal principles established

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  • A verbal decision of a public body is capable of being quashed in judicial review notwithstanding Order 53 Rule 7(1); a public body cannot rely on the unwritten state of its own decision to defeat a challenge, especially where it breached Article 47 by failing to give written reasons.
  • Where public officers are mandated by law to perform tasks for the public, the duty is not discretionary; they must perform it without being begged by citizens, and must communicate any logistical challenges.
  • Mandamus compels performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform it to the detriment of a party with a legal right to expect performance.

Court orders

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  1. 1.An order of mandamus compelling the respondents to give reasons why they have not acted on the applicants' request for the survey of LR No. UASIN GISHU/JABALI/97 and the dispute therein within 14 days
  2. 2.Failure to give reasons within 14 days, the respondents to carry out the survey within 30 days, the applicant having paid for the services
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 53 Rule 7(1)

Cases cited (15)

  • Republic V. Kenyatta University Ex Parte Martha Waihuini Ndungu
    (2019) eKLR
  • Republic V. Principal Secretary Ministry of Internal Security & Another Ex Parte Schon Noorani & Another
    (2018) eKLR
  • Kenya National Examination Council V Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Republic V Director of Surveys & 5 Others Ex –Parte Ndeffo Company Limited
    [2017] eKLR
  • Judicial Service Commission V Mbalu Mutava
    [2015] eKLR
  • Republic V Public Procurement Administrative Review Board & 2 Others Ex Parte - Sanitam Services (E A) Limited
    [2013] eKLR
  • Municipal Council of Mombasa V Republic & Another
    [2002] eKLR
  • Seventh Day Adventist Church (East Africa) Limited V Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another
    [2014] eKLR
  • Council of Civil Service Unions Versus Minister for the Civil Service
    (1985) AC 374
  • Republic Vs Public Private Partnerships Petition Committee (The Petition Committee) 63 Others Ex Parte AP M Terminals
    [2015] eKLR
  • Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others
    [2017] eKLR
  • Republic V Mwangi S. Kimenyi Ex –Parte Kenya Institute for Public Policy and Research and Analysis (KIPPRA)
    [2013] eKLR
  • Republic vs. Kenya National Examinations Council ex parte Gathenji & Others
    [1997] eKLR
  • JOHN KIPKOECH ROTICH & 29 OTHERS V DRINKS REGULATION COMMITTEE EX PARTE JOHN KIPKOECH ROTICH T/A SILENT PUB & 29 OTHERS
    [2019] eKLR
  • Agricultural Finance Corporation v Land Control Board of Loitokitok & 3 others
    [2014] eKLR
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Articles 47 and 50 of the Constitution of Kenya, 2010

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 Land Surveyor, Uasin Gishu County & another Ex Parte Nathan Songok & 7 others [2021] KEELC 2175 (KLR)", Case Analysis (2021). Notice of Motion dated 27th February 2020 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2175/eng@2021-08-23

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