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ELCAllowed· [2022] KEELC 2100 (KLR)

Republic v District Land Registrar, Siaya; Ex parte Simon Peter Otieno Okong’o [2022] KEELC 2100 (KLR)

Environment and Land Court
20 January 2022
AKA. Y. Koross
1,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won the right to challenge the government's revocation of his title, and the revocation is frozen while the case proceeds.

What this practically means

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Executive summary

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This is an unopposed ex parte chamber summons application dated 20/09/2021 under Order 53 Rule 1 of the Civil Procedure Rules and Section 8(2) of the Law Reform Act, in which the applicant sought leave to commence judicial review proceedings seeking certiorari to quash Gazette Notice No. 5399 dated 30/07/2020, by which the respondent revoked his registration as proprietor of land parcel EAST GEM/ANYIKO/1769, and a direction that leave operate as a stay. The applicant argued that the revocation contravened Articles 10 and 47 of the Constitution and was illegal, unreasonable, biased, unjustifiable, unlawful and ultra vires. The respondent filed no response or submissions, and the court determined the motion on its merits. Framing two issues - whether leave was warranted and whether it should operate as a stay - the court held that Article 47 and Section 13(7) of the Environment and Land Court Act confer jurisdiction over judicial review, and that leave serves to filter out frivolous applications. Applying the prima facie case test in Mirugi Kariuki v Attorney General, it found the applicant had an arguable case. On stay, it applied the continuing-implementation principle from Taib A. Taib and related authorities, finding the revocation required continuing acts by the respondent and that refusal would render the summons nugatory. Leave was granted in terms of prayers (2) and (3), with costs in the cause, and directions for filing of the substantive notice of motion within 21 days and a mention on 7/3/2022.

Key legal issues

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01

Whether the ex parte applicant established grounds for grant of leave to apply for judicial review

Holding

The court found the applicant has an arguable case and established a prima facie case.

Reasoning

The court applied the test in Mirugi Kariuki v Attorney General that leave is granted where a prima facie case is shown on reasonable grounds of failure of public duty. The leave stage is a filter against frivolous and vexatious applications, exercised as a judicial discretion. On review of the pleadings, statement of facts and verifying affidavit, the court was satisfied the applicant's challenge to the revocation of his title was arguable and fit for further consideration.

p. 2
02

Whether the grant of leave should operate as a stay of the gazette notice

Holding

Leave was directed to operate as a stay because the revocation requires continuing acts by the respondent and the summons would be rendered nugatory otherwise.

Reasoning

Relying on a line of authorities including Taib A. Taib and Jared Benson Kangwana, the court noted that where implementation of a decision is of a continuing nature, it remains possible to suspend it. The cancellation of the title would require continuing actions by the respondent, and without a stay the applicant's summons would be rendered nugatory. The stay was therefore merited.

p. 2

Legal principles established

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  • The purpose of leave in judicial review is to weed out frivolous, vexatious or hopeless applications at an early stage.
  • An applicant for leave must establish a prima facie case on reasonable grounds for believing there has been a failure of public duty.
  • Where a decision is of a continuing nature, its implementation can still be stayed even if partly effected.

Court orders

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  1. 1.The ex parte applicant's summons is granted in terms of prayers (2) and (3)
  2. 2.Costs of the summons shall be in the cause
  3. 3.The ex parte applicant shall file and serve the substantive Notice of Motion and submissions, and serve the respondent with a copy of the ruling and a mention notice within 21 days
  4. 4.The respondent shall file its response to the substantive Notice of Motion and submissions within 21 days of service
  5. 5.Mention for directions on 7/3/2022
  6. 6.Affidavit of service to be filed 3 days prior to the mention date
  7. 7.Parties at liberty to apply

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1; Order 53
  • Law Reform ActSection 8(2)
  • Constitution of KenyaArticles 10 and 47
  • Environment and Land Court ActSection 13(7)

Cases cited (6)

  • Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
  • Mirugi Kariuki Vs. Attorney General
    Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8
  • Taib A. Taib vs. The Minister for Local Government & Others
    Mombasa HCMISCA No. 158 of 2006
  • Jared Benson Kangwana vs. Attorney General
    Nairobi HCCC No. 446 of 1995
  • Republic vs Cabinet Secretary for Transport & Infrastructure & 4 Others ex parte Kenya Country Bus Owners Association and 8 Others
    (2014) eKLR
  • James Opiyo Wandayi vs Kenya National Assembly & 2 Others
    (2016) eKLR
Jurisdiction invoked
Article 47 of the Constitution and Section 13(7) of the Environment and Land Court Act; Order 53 of the Civil Procedure Rules and Section 8(2) of the Law Reform 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 District Land Registrar, Siaya; Ex parte Simon Peter Otieno Okong’o [2022] KEELC 2100 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2100/eng@2022-01-20

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