Republic v Land Surveyor, Uasin Gishu County & another Ex Parte Nathan Songok & 7 others [2021] KEELC 2175 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the respondents were under an enforceable public duty to survey the suit land and resolve the boundary dispute
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.
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.
Whether the respondents' inaction violated Articles 47 and 50 of the Constitution
The respondents' failure to give written reasons for their refusal breached the Article 47 right to fair administrative action.
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.
Legal principles established
#- 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
#- 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.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.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.