Republic & 18 others v Attorney General of Kenya & 6 others; Mbaluto & 2 others (Interested Parties); Maithia & 17 others (Exparte) (Judicial Review Application E008 of 2020) [2022] KEELC 2485 (KLR)
The bottom line
#A Machakos court dismissed squatters' attempt to stop eviction, confirming that judicial review cannot protect people with no legal right to land.
What this practically means
#Executive summary
#Key legal issues
#Whether the order sought was properly framed as mandamus
The prayer for mandamus failed because mandamus compels performance of public duties and cannot issue as a prohibitory order restraining public officers
The court held that mandamus commands a public officer or body to do what the law requires; it is a positive remedy. The Exparte Applicants sought an order restraining the Respondents from evicting them, which is the nature of prohibition or an injunction, not mandamus. Seeking mandamus to restrain action was therefore contradictory and defeatist, and the court could not grant it in that form.
Whether the Exparte Applicants demonstrated a legal right entitling them to mandamus
They did not; they admitted being squatters and their adverse possession suit had been dismissed, so they had no legal right capable of protection
Mandamus issues to protect a specific legal right. The Applicants admitted residing on the suit properties without ownership, relying on adverse possession which no court had declared; indeed their adverse possession suit (Machakos ELC No. 462 of 2017) was dismissed on 7th October 2020 and was uncontroverted. The Interested Parties, as registered proprietors with titles and a decree, held the legal rights, so the Applicants had no right upon which to restrain police from enforcing law and order.
Whether the substantive mandamus prayer could be granted without leave
No; leave had been granted for certiorari and prohibition, not mandamus
Under Order 53 of the Civil Procedure Rules, leave must be obtained before a substantive application for judicial review is made. The leave granted on 22nd December 2020 was in respect of certiorari to quash the Respondents' decision of 18th December 2020 and orders of prohibition. The Notice of Motion instead sought mandamus, for which no leave had been obtained. The court held that substantive orders cannot be granted in respect of a prayer for which no leave was sought or obtained.
Whether non-disclosure of material facts disentitled the Applicants to relief
The Applicants' deliberate non-disclosure of the registered proprietors, the search certificates and prior litigation constituted an abuse of process that disentitled them to relief
The Applicants filed the application in respect of five properties but failed to avail search certificates, failed to join the registered proprietors, and failed to disclose prior litigation over the suit properties, including the dismissed adverse possession suit and the decree in Machakos HCCC No. 337 of 2011. The court found the non-disclosure mischievous and fraudulent, aimed at sanitizing illegal occupation of private property, and held the court would not sanction or aid an illegality.
Legal principles established
#- An order of mandamus is a positive order compelling a public body to perform a public duty; it cannot issue to restrain a public officer from doing an act
- A judicial review applicant must demonstrate that the decision complained of is illegal, irrational or procedurally improper
- An applicant cannot be granted substantive judicial review orders in respect of which leave was not obtained
- A court will not aid a litigant whose cause of action is premised on illegality or where material facts have been deliberately concealed
Court orders
#- 1.The application dated 12th January 2021 is dismissed with costs to the Interested Parties
- Jurisdiction invoked
- Order 53 Rules 1 and 3 of the Civil Procedure Rules, pursuant to leave granted on 22nd December 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic & 18 others v Attorney General of Kenya & 6 others; Mbaluto & 2 others (Interested Parties); Maithia & 17 others (Exparte) (Judicial Review Application E008 of 2020) [2022] KEELC 2485 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated 12th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2485/eng@2022-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.