Jepleting K’Opt Arusei & 2 others (Environment and Land Judicial Review Appeal 7 of 2021) [2022] KEELC 2954 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land title, ruling the Land Registrar had to follow every step of a court decree, including involving a surveyor.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review jurisdiction under the 2010 Constitution and the Fair Administrative Action Act
The court is not confined to the decision-making process; a merit review is permissible where the application is brought under Article 47 and the FAAA
The court held that the traditional process-only jurisprudence in Municipal Council of Mombasa predates the Constitution 2010, whose Article 47 grounds judicial review. Relying on Suchan Investment and Lucy Njora, it found the jurisdiction of the court in judicial review has greatly expanded and a merit analysis is possible, since the application was expressly brought under Article 47 and the FAAA.
Whether the Registrar's registration of the whole parcel in the Interested Party's name complied with the decree
It did not; the decree required subdivision and hiving off of 2.2 acres, but the Registrar transferred the whole parcel without involving the Government Surveyor
The decree adopted the tribunal award and directed the Government Surveyor to subdivide Nandi/kokwet/552 and the Land Registrar to issue a title for 2.2 acres to the Interested Party. The Registrar effected a wholesale transfer without subdivision or surveyor involvement, omitting part of the decree. That omission fell within section 7 of the Fair Administrative Action Act as reviewable action, entitling the Applicant to relief.
The actual acreage of Nandi/kokwet/552
Per the Register, the original acreage was approximately 2.2 acres, equivalent to 0.89 hectares; the Applicant's search showing 2.2 hectares had no backing from the Register
The complete copy of the register filed with the supplementary affidavit showed the approximate area typewritten as 2.2 Acres which was cancelled and handwritten as 0.89 Ha. The court converted 2.2 acres and found it equals 0.89 Ha. It therefore found the applicant's contention of a 2.2 hectare parcel unsupported, though it noted a discrepancy with a survey report showing 3.048 acres on the ground.
Legal principles established
#- Where a judicial review applicant invokes Article 47 of the Constitution and the Fair Administrative Action Act, the court may undertake a merit analysis of the decision, not merely a process-only review
- Implementation of a court decree that omits a required step (such as involving the Government Surveyor to ascertain and subdivide acreage) is an omission amounting to reviewable administrative action
Court orders
#- 1.An order of certiorari issued quashing the decision of the Respondent made on 8/7/2021 issuing a title for Nandi/kokwet/552 to Pascaline Jepkemboi, and the title so issued cancelled
- 2.An order of mandamus issued to the Respondent to strictly comply with the decree in Kapsabet LDT No. 9 of 2010 by involving the County Surveyor, in the presence of the Exparte Applicant and the Interested Party, to ascertain the acreage of Nandi/kokwet/552
- 3.If the acreage on the ground exceeds the acreage on the Register, the County Surveyor to subdivide and the Registrar to register 2.2 acres in favour of the Interested Party and the residual acreage in favour of the Exparte Applicant, giving regard to the current abode of the Exparte Applicant
- 4.Should the acreage be confirmed to be 2.2 acres on the ground as corresponding to the Register, the whole portion to be transferred to the Interested Party Pascaline Jepkemboi as per the decree and a new title issued to her
- 5.There shall be no orders as to costs
- Jurisdiction invoked
- Article 47 of the Constitution and the Fair Administrative Action Act, invoked for judicial review orders of certiorari and mandamus (leave under Order 53 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jepleting K’Opt Arusei & 2 others (Environment and Land Judicial Review Appeal 7 of 2021) [2022] KEELC 2954 (KLR)", Case Analysis (2022). Judicial Review Application (Kapsabet ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2954/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.