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ELCDismissedJudicial Review (Notice of Motion dated 17th January, 2020)· [2021] KEELC 4317 (KLR)

Republic v National Land Commission, Cabinet Secretary Ministry of Lands & Housing Physical Planning & Urban Development, Attorney General & County Government of Kwale Ex-Parte; Diani Scheme Resource Centre (Judicial Review 1 of 2020) [2021] KEELC 4317 (KLR)

High Court of Kenya
15 February 2021
CYC.K. Yano
1,783 words in judgment
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The bottom line

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The High Court in Mombasa dismissed a community's attempt to freeze land dealings in the Diani Settlement Scheme, because affected title holders were not joined to the case.

What this practically means

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Executive summary

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The Ex-parte Applicant, Diani Scheme Resource Centre, moved the High Court by Notice of Motion dated 17th January 2020 under Order 53 Rules 3 and 4 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking a moratorium on transfers and registrations within the Kwale/Diani Settlement Scheme, an order of prohibition against alienation using the survey plan dated 4th February 1992, and an order of mandamus compelling the respondents to adopt the original Part Development Plan No. 413.CT.2.82 and gazette a new survey plan. The applicant averred that its members and their forefathers had occupied the scheme since time immemorial, that the 1977 adjudication and allocation under the original PDP was marred by irregularities after the adoption of the 1992 survey plan, producing missing names, double allocations and inconsistent land reference numbers. None of the respondents filed a response despite service. The court, applying the settled principles that judicial review concerns the decision-making process rather than merits, and that mandamus issues only where a clearly defined and peremptory duty has been omitted, declined the orders. It held that conflicts arising from the 1992 survey plan should be pursued by affected individuals through ordinary dispute-resolution mechanisms; that the respondents had made attempts to resolve the dispute; and that orders would affect third-party title holders who were not joined and whose certificates of title are prima facie indefeasible under Section 26 of the Land Registration Act, with no proof of fraud. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether judicial review was the appropriate remedy for the alleged allocation irregularities

Holding

No - affected individuals should pursue normal dispute resolution mechanisms

Reasoning

The court held that the applicants' complaints about the 1992 survey plan and conflicts with purchasers were disputes for individuals to pursue through ordinary dispute-resolution mechanisms, since judicial review supervises process rather than merits, and the court cannot act as an appeal over decision-makers.

p. 3
02

Whether mandamus could issue against the respondents

Holding

No - no established, plainly defined and peremptory duty was shown to have been declined

Reasoning

Relying on the mandamus principles, the court found the respondents had made several attempts to resolve the dispute, so there was no established refusal to perform a clearly defined statutory duty capable of being compelled by mandamus.

p. 3
03

Whether orders could issue affecting non-joined third parties holding titles

Holding

No - all persons likely to be affected had to be enjoined and heard

Reasoning

The title holders under the 1992 survey plan were not parties; their certificates of title are prima facie indefeasible under Section 26 of the Land Registration Act, and no fraud was proved against them. Affected persons must be joined and heard before such orders are made.

p. 3

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits of the decision
  • Mandamus will not issue against a public officer unless the duty to act is clearly established, plainly defined and peremptory
  • A Certificate of Title under Section 26 of the Land Registration Act is prima facie evidence of absolute and indefeasible ownership, subject only to fraud, misrepresentation or illegal/unprocedural/corrupt acquisition

Court orders

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  1. 1.The Notice of Motion dated 17th January, 2020 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3 and 4
  • Law Reform Act Cap 26 Laws of KenyaSections 8 and 9
  • Land Registration ActSection 26

Cases cited (3)

  • Municipal Council of Mombasa -v- Republic & Umoja Consultants Ltd
    (2000) eKLR
  • Republic - v- Kenya National Examinations Council Ex Parte Geoffrey Gathenji and 9 Others
    Nairobi Civil Appeal No. 266 of 1996
  • Mwau -v- Principal Immigration Officer
    (1983) KLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 26 and Order 53 Rules 3 and 4 of the Civil Procedure Rules

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 National Land Commission, Cabinet Secretary Ministry of Lands & Housing Physical Planning & Urban Development, Attorney General & County Government of Kwale Ex-Parte; Diani Scheme Resource Centre (Judicial Review 1 of 2020) [2021] KEELC 4317 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 17th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4317/eng@2021-02-15

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