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ELCPartially AllowedJudicial Review Application (Kapsabet ELC)· [2022] KEELC 2954 (KLR)

Jepleting K’Opt Arusei & 2 others (Environment and Land Judicial Review Appeal 7 of 2021) [2022] KEELC 2954 (KLR)

Environment and Land Court
29 July 2022
3,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Exparte Applicant sought judicial review orders of certiorari and mandamus against the Land Registrar, Nandi County, challenging her decision of 8 July 2021 to reduce the registered acreage of Nandi/Kokwet/552 and to register the Interested Party, Pascaline Jepkemboi, as sole proprietor without notice or involvement of the Applicant. The Respondent contended she merely implemented a decree of the Kapsabet Lands Dispute Tribunal case (adopted by the Magistrate's Court), which was binding on her office, while the Interested Party argued the motion was time-barred, abusive, and failed to attach the decision challenged as required by Order 53 Rule 7(1). The court framed its own issues and first held, applying Suchan Investment and JSC v Lucy Muthoni Njora, that where judicial review is anchored in Article 47 of the Constitution and the Fair Administrative Action Act, the court may undertake a merit analysis, not merely examine the decision-making process. On compliance with the decree, the court found the Registrar had transferred the entire parcel without involving the Government Surveyor to ascertain and subdivide 2.2 acres as the decree required - an omission constituting reviewable administrative action under sections 2 and 7 of the Fair Administrative Action Act. On acreage, the court found the Register showed approximately 2.2 acres (0.89 Ha) and discounted the Applicant's claim that the parcel measured 2.2 hectares. The motion dated was allowed not in terms as prayed: certiorari quashed and cancelled the title issued to the Interested Party on 8/7/2021, and mandamus was issued compelling the Registrar to implement the decree by involving the County Surveyor to ascertain, subdivide and register acreage accordingly, with provision for the Applicant's current abode. There were no orders as to costs.

Key legal issues

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01

Scope of judicial review jurisdiction under the 2010 Constitution and the Fair Administrative Action Act

Holding

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

Reasoning

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.

p. 6
02

Whether the Registrar's registration of the whole parcel in the Interested Party's name complied with the decree

Holding

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

Reasoning

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.

p. 7
03

The actual acreage of Nandi/kokwet/552

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.There shall be no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action Actsections 2 and 7
  • Civil Procedure RulesOrder 53 Rule 7(1) and Rule 3

Cases cited (7)

  • Patroli vs Kabale District Local Government Council and others
    (2008) 2 E.A. 300
  • Econet Wireless Ltd. vs Minister for Information and Communication of Kenya and Another
    (2005) KLR 228
  • Municipal Council of Mombasa vs Republic & Umoja Consultants Nairobi
    Civil Appeal No. 185 of 2007 (2002) eKLR
  • Samson Kirerea M'ruchu vs Minister for Lands and Settlement
    CA 21 of 1999
  • Musa Kingori Gaita vs Kenya Wildlife Service
    (2006) eKLR
  • Suchan Investment Limited vs Ministry of National Heritage and 2 others
    Civil Appeal No. 46 of 2021
  • JSC vs Lucy Muthoni Njora
    Civil Appeal No. 486 of 2019
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

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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, "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.