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ELCDismissedELC Judicial Review No. 5 of 2020 (Narok) - Notice of Motion dated 29th May 2020· [2022] KEELC 918 (KLR)

Republic v Director of Land Adjudication & Settlement & 3 others; Director of Land Adjudication & Settlement; Ole Nkomei Adjudication Section & 8 others [2022] KEELC 918 (KLR)

Environment and Land Court of Kenya
10 March 2022
CMC. G. Mbogo
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court refused to force land officials to issue title certificates because an existing court order was blocking the process, and mandamus cannot override another court's orders.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th May 2020, filed with leave granted on 11th March 2020, the ex-parte Applicants sought an order of mandamus compelling the 1st, 2nd and 3rd Respondents to complete the adjudication processes for the Nkoirienito, Iloiborlukuny, Oltepesi, Oloika (Shilarie) and Olosho Lole Punyua Adjudication Sections and to issue Certificates of Title Deeds, plus costs. The Applicants, members and representatives of adjudication sections carved out of the former Ntulele Adjudication Section (declared in 1970 and sub-divided in the 1990s following clan clashes), contended that demarcation was complete, registers closed and notices of completion issued in 2019, yet the 2nd Respondent had not forwarded the registers for registration, causing economic loss and violating their constitutional property rights, natural justice, fair administrative action and legitimate expectation. The Respondents, through the affidavit of Amos M. Musyoka, opposed the application, explaining that demarcation was completed by 1993 but the process has been kept in abeyance pending an interim court order of 10th February 2009 issued in Miscellaneous Civil Application No. 871 of 2005, and only a court could direct otherwise. The Interested Parties, being adjudication section committees, supported the application. Framing two issues, the court applied the mandamus test from Apotex Inc. v Canada (Attorney General) as restated by the Court of Appeal in Gathenji. It held that although a public duty was admittedly owed, there was no outright, express or implied refusal through unreasonable delay, since the delay was attributable to a subsisting interim court order whose full particulars were never disclosed. Relying on Bellevue Development Company Ltd v Francis Gikonyo, the court declined to countermand an order of another court of concurrent jurisdiction, noting appeal or setting aside that order would have been the viable option. The application was dismissed with costs to the Respondents.

Key legal issues

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Whether mandamus could issue to compel completion of land adjudication despite a subsisting interim court order halting the process

Holding

Mandamus was refused because the Respondents' failure was attributable to the interim order of 10th February 2009, not to any refusal, and this court could not countermand an order of a court of concurrent jurisdiction

Reasoning

The court applied the eight-factor test for mandamus (public duty, clear right, refusal or unreasonable delay, no other adequate remedy, practical value, no equitable bar, balance of convenience). Here it was common ground that a public duty was owed, but all parties agreed the delay was caused by an interim order issued on 10th February 2009 in Miscellaneous Civil Application No. 871 of 2005, which was apparently still in force. Issuing mandamus would have the effect of countermanding that order and usurping the jurisdiction of the court that issued it; the proper avenue was appeal or setting aside that order.

p. 4

Legal principles established

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  • Mandamus compels performance of a public duty imposed by statute where the person or body has failed to perform it to the detriment of a party with a legal right to expect performance
  • A court cannot examine or determine the lawfulness of the decision of another court of concurrent jurisdiction

Court orders

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  1. 1.The Notice of Motion dated 29th May 2020 seeking an order of mandamus was dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Land Adjudication Actsection 30(1)

Cases cited (10)

  • Kenya National Examination Council vs Republic ex-parte Geoffrey Gathenji Njoroge & 9 Others
    [1997]eKLR
  • Republic vs the Commission of Lands & Another ex-parte Kithinji Mungu Miagere
  • Republic vs Director of Surveys & 5 Others ex-parte Ndeffo Company Limited
    ELC Judicial Review No 9 of 2015 at Nakuru
  • Apotex Inc. vs Canada (Attorney General)
  • Republic vs National Employment Authority & 3 Others ex-parte Middle East Consultancy Services Limited
    [2018]eKLR
  • Council of Civil Service Union vs Minister of Civil Service
    [1984] 3 All ER 935
  • Republic vs Kenya National Examinations Council ex parte Gathenji & 8 Others
    Civil Appeal No 234 of 1996
  • Bellevue Development Company Ltd v Francis Gikonyo & 7 others
    [2018]eKLR
  • Kombo vs Attorney General
    [1995-98] 1EA 168
  • Dragan vs Canada (Minister of Citizenship and Immigration)
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act and Civil Procedure Rules, by leave granted on 11th March 2020; consent sought under section 30(1) of the Land Adjudication Act

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 Director of Land Adjudication & Settlement & 3 others; Director of Land Adjudication & Settlement; Ole Nkomei Adjudication Section & 8 others [2022] KEELC 918 (KLR)", Case Analysis (2022). ELC Judicial Review No. 5 of 2020 (Narok) - Notice of Motion dated 29th May 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/918/eng@2022-03-10

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