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ELCDismissedJudicial Review application (Chambers Summons dated 10th May, 2021)· [2022] KEELC 708 (KLR)

Daniel Supeyo Nkai v Simon Ntasikoi Noonkanas, Land Registrar, Kajiado & another [2022] KEELC 708 (KLR)

Environment and Land Court
23 March 2022
MGM.N. Gicheru
881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court dismissed a bid to remove a land caution by judicial review, ruling statutory procedures must be used first and writs cannot target private individuals.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determined a preliminary objection dated 7th June 2021 raised by the first Respondent against the Applicant's Chambers Summons dated 10th May 2021. The summons sought an order of mandamus compelling the Land Registrar Kajiado to remove a caution registered over parcel KAJIADO/DALALEKUTUK/6557, an order of prohibition against the first Respondent from placing any further caution without notice, and that leave operate as a stay. The preliminary objection contended that judicial review orders cannot issue against a private individual, that the court lacked jurisdiction, and that the Applicant had not exhausted the caution-removal procedure under Section 73 of the Land Registration Act. The Attorney General filed grounds of opposition, asserting the caution was registered within the Registrar's statutory mandate under Section 71 and that an underlying contractual dispute existed. The court framed a single issue: whether the suit met the judicial review threshold given that the relief of prohibition was sought against a private person. Holding that although judicial review has evolved to the hard look doctrine under Articles 23(3)(f) and 47(1) of the Constitution and Section 7(2) of the Fair Administrative Action Act, prerogative writs cannot issue against private persons, the court also found that the statutory procedure for caution removal must first be exhausted. The preliminary objection was upheld, the suit dismissed, and each party ordered to bear its own costs since the dispute may be filed in another form at a different forum.

Key legal issues

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01

Whether judicial review relief can issue against a private individual

Holding

No - prerogative writs cannot issue against a private person, and the suit was dismissed

Reasoning

Although judicial review has evolved from the common law position to the hard look doctrine under Articles 23(3)(f) and 47(1) of the Constitution and Section 7(2) of the Fair Administrative Action Act, the court found no authority extending the writs to private persons. Prohibition directed at the first Respondent, a private individual, therefore fails the judicial review threshold.

p. 2
02

Whether the Applicant was required to exhaust the caution-removal procedure under the Land Registration Act

Holding

Yes - the statutory procedure for removal of a caution must be exhausted before coming to court

Reasoning

The court was persuaded by the Attorney General and the first Respondent that Sections 71 and 73 of the Land Registration Act provide a procedure for lodging and removing cautions which the Applicant had not utilised. This ground of exhaustion independently supported upholding the preliminary objection.

p. 3

Legal principles established

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  • Prerogative writs cannot issue against a private person despite the evolution of judicial review to the hard look doctrine
  • Statutory remedies for removal of a caution under the Land Registration Act must be exhausted before resorting to judicial review

Court orders

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  1. 1.The Preliminary Objection dated 7th June, 2021 is upheld
  2. 2.The suit is dismissed
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Land Registration ActSection 71
  • Land Registration ActSection 73
  • Constitution of KenyaArticle 23(3)(f)
  • Constitution of KenyaArticle 47(1)
  • Fair Administrative Action ActSection 7(2)

Cases cited (4)

  • Mwangi Rukwaro –vs- Land Registrar, Nyeri
    (2019) eKLR
  • The Republic –vs- District Land Registrar Kiambu and another ex parte: Muguga Pyrethrum Growers Cooperative Society LTD and another
    (2014) eKLR
  • Judicial Service Commission and another –versus- Lucy Muthoni Njora
    (2021) eKLR
  • Felix Kiprono Mategei –vs- Attorney General; LSK (Amicus Curiae)
    2021 eKLR
Jurisdiction invoked
Judicial review jurisdiction (Articles 23(3)(f) and 47(1) of the Constitution; Fair Administrative Action Act, Section 7(2)) invoked by the parties; not determined against a private person

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, "Daniel Supeyo Nkai v Simon Ntasikoi Noonkanas, Land Registrar, Kajiado & another [2022] KEELC 708 (KLR)", Case Analysis (2022). Judicial Review application (Chambers Summons dated 10th May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/708/eng@2022-03-23

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