Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedJudicial Review (Chamber Summons) dated 14th April 2021, Chuka· [2021] KEELC 3581 (KLR)

Naftaly Nthendu Rubane v District Land Adjudication and Settlment Officer Tharaka South Sub-County & 3 others; David Muriungi Kiania (Interested Parties) & another [2021] KEELC 3581 (KLR)

Environment and Land Court (High Court exercising judicial review jurisdiction)
26 April 2021
PNP. M. Njoroge
1,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Tharaka landowner won court permission to challenge a minister's land appeal decision, freezing any changes to his parcels until the case is fully heard.

What this practically means

#

Executive summary

#
This was an ex-parte chamber summons dated 14th April 2021 brought by Naftaly Nthendu Rubane under Articles 23(3)(f), 40 and 50 of the Constitution, Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010 and Sections 26 to 29 of the Land Adjudication Act, Cap 284. The applicant sought leave to apply for judicial review orders of certiorari to quash the decisions in Appeals to the Minister Case Nos. 309 and 310 of 2020 delivered on 5th March 2021, and prohibition restraining the respondents from implementing those decisions in relation to Parcel Nos. Kamarandi B'719 and 720, with the grant of leave to operate as a stay of proceedings. The applicant complained that the County Commissioner's decision was biased, disregarded his 36 years of occupation and extensive development of the parcels, relied on irrelevant factors and the interested parties' contradictory statements, violated natural justice by ordering an equal sub-division, and awarded the interested parties absolute rights despite contrary findings by the Demarcation Officer, Board and Adjudication Officer. At the ex-parte hearing on 26th April 2021, counsel Kijaru submitted that the applicant had occupied the suit property since time immemorial and that the impugned decision was ultra vires. Justice P. M. Njoroge found the application necessary and merited and allowed it: leave was granted for prayers 2(a) and 2(b), prayer 3 (that leave operate as a stay) was granted, and costs were made in the cause. This ruling grants leave only; the substantive judicial review motion remains to be heard.

Key legal issues

#
01

Leave to apply for orders of certiorari and prohibition against decisions of appeals to the Minister under the Land Adjudication Act

Holding

Leave was granted for prayers 2(a) and 2(b) seeking certiorari to quash the decisions in Appeals to the Minister Case Nos. 309 and 310 of 2020 and prohibition against implementation of those decisions.

Reasoning

The applicant, through counsel Kijaru, submitted that the applicant had occupied the suit property since time immemorial and that the impugned decision was ultra vires. On the papers and counsel's oral submission at the ex-parte hearing of 26.4.2021, the court found the application necessary and merited and granted leave in respect of the substantive reliefs sought.

p. 3
02

Stay of proceedings pending determination of the judicial review suit

Holding

Prayer 3 seeking that the grant of leave operate as a stay of proceedings pending determination of the suit was granted.

Reasoning

Under Order 53 of the Civil Procedure Rules, an applicant for judicial review may seek that leave operate as a stay. The applicant sought this in prayer 3 of the Chamber Summons, and the court granted it in terms, preserving the position on parcels Kamarandi B'719 and 720 pending the substantive judicial review.

p. 3

Legal principles established

#
  • An ex-parte chamber summons for leave to apply for judicial review orders of certiorari and prohibition may be granted where the application is found necessary and merited, and leave may operate as a stay of proceedings under Order 53.

Court orders

#
  1. 1.Leave is granted for prayers 2(a) and 2(b) of the Chamber Summons
  2. 2.Prayer 3 is granted - the grant of leave to operate as a stay of proceedings pending determination of the suit
  3. 3.Costs shall be in the cause

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 23(3)(f), 40, 48, 50, 156
  • Civil Procedure Rules, 2010Order 53 Rules 1 & 2
  • Land Adjudication Act, Cap 284 Laws of KenyaSections 26, 27, 28 & 29
Jurisdiction invoked
Articles 23(3)(f), 40 and 50 of the Constitution of Kenya, 2010; Order 53 Rules 1 & 2 of the Civil Procedure Rules, 2010; Sections 26, 27, 28 & 29 of the Land Adjudication Act, Cap 284

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Naftaly Nthendu Rubane v District Land Adjudication and Settlment Officer Tharaka South Sub-County & 3 others; David Muriungi Kiania (Interested Parties) & another [2021] KEELC 3581 (KLR)", Case Analysis (2021). Judicial Review (Chamber Summons) dated 14th April 2021, Chuka. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3581/eng@2021-04-26

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