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ELCStruck OutNot stated in the judgment (Chamber Summons application dated 31/3/2021)· [2021] KEELC 2698 (KLR)

Hannah Wanjiru Gitau v Chairman, Murang’a Kandara Land Board [2021] KEELC 2698 (KLR)

Environment and Land Court
30 June 2021
JKJ. G. Kemei
1,196 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A landowner's bid to force a Land Control Board to issue consent failed because she skipped mandatory judicial review procedure and brought no evidence.

What this practically means

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Executive summary

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The Applicant, Hannah Wanjiru Gitau, moved the Environment and Land Court at Murang'a by Chamber Summons dated 31/3/2021 seeking an order of certiorari to quash the decision of the Land Control Board, Kandara, deferring issuance of consent to transfer land parcel LOC.4/NGUTHURU/414 until Letters of Administration were produced, an order of mandamus compelling the Board to issue the consent unconditionally, and a direction that the Murang'a Land Registrar effect the transfer. The Applicant, a donee under completion documents allegedly issued by the deceased donor, contended the land was not subject to succession and urged the Court to order grant of the consent. The application was unopposed. The Court, however, framed the sole issue as whether the application as drawn was competent. It found that the substantive prayers sought certiorari and mandamus under Order 53 Rule 1 of the Civil Procedure Rules, which requires prior leave, yet no leave had been sought - a position contradicted by the Applicant's own verifying affidavit stating she intended to obtain leave. Alternatively, even under the Fair Administrative Action Act (where leave is not required, per Felix Kiprono Matagei v Attorney General), the Applicant failed to present the impugned Board decision and adduced no evidence of the statutory completion documents. The Court struck out the application with no orders as to costs.

Key legal issues

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01

Whether the Chamber Summons application seeking certiorari and mandamus was properly before the Court

Holding

The application was incompetent and was struck out. The Applicant did not seek leave as required by Order 53 Rule 1, and even under the Fair Administrative Action Act route, failed to present the impugned decision or adduce any evidence.

Reasoning

The substantive prayers sought certiorari and mandamus, which under Order 53 Rule 1 require prior leave. The Applicant's own verifying affidavit confirmed she only intended to seek leave. Alternatively, under the FAA Act (no leave required), the Applicant neither exhibited the impugned Board decision nor the statutory completion documents allegedly executed by the donor, leaving the Court unable to determine the claim on the material presented.

p. 2

Legal principles established

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  • An applicant pursuing judicial review under Order 53 Rule 1 of the Civil Procedure Rules must first obtain leave before instituting the substantive proceedings
  • A party commencing judicial review under the Fair Administrative Action Act need not seek leave
  • Under Section 9(2) of the Fair Administrative Action Act, a court shall not review an administrative action unless available internal appeal or review mechanisms and remedies under other written law are first exhausted
  • An applicant for judicial review must place before the court the impugned decision sought to be quashed or reviewed

Court orders

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  1. 1.The Chamber Summons application dated 31/3/2021 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1(4)
  • Civil Procedure RulesOrder 53 Rule 1(1)
  • Fair Administrative Action ActSection 9(1)-(5)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 22(3)

Cases cited (2)

  • The Registered Trustees of Anglican Church of Kenya Mbeere Diocese Vs. The Rev. David Waweru Njoroge
    Court of Appeal, CA No. 108 of 2002
  • Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae)
    [2021] eKLR
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Section 9 of the Fair Administrative Action Act (No. 4 of 2015), giving effect to Article 47 of the Constitution

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, "Hannah Wanjiru Gitau v Chairman, Murang’a Kandara Land Board [2021] KEELC 2698 (KLR)", Case Analysis (2021). Not stated in the judgment (Chamber Summons application dated 31/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2698/eng@2021-06-30

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