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ELCDismissedNot stated in the judgment (substantive judicial review notice of motion dated 25/8/2021)· [2023] KEELC 803 (KLR)

Kiplangat v Cabinet Secretary of Lands and Physical Planning & 5 others; Chelagat & another (Interested Parties) (Land Case 8 of 2021) [2023] KEELC 803 (KLR)

Environment and Land Court of Kenya
15 February 2023
6,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed a landowner's judicial review bid over his title, saying competing land claims belong in an ordinary lawsuit, not judicial review.

What this practically means

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Executive summary

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The ex parte applicant, Henry Kiptiony Kiplangat, sought judicial review orders of certiorari, prohibition and mandamus to quash and restrain implementation of a decision by the Cabinet Secretary for Lands communicated by memo dated 26th July 2021 directing land officials to expunge his lease over Eldama Ravine Township Block 1/656 from the records. He claimed to be an innocent purchaser for value from one Raymond Kipkemoi Kiplagat, asserting the decision was made without a hearing, in breach of natural justice and the Fair Administrative Action Act, and ultra vires the Cabinet Secretary's powers. Two interested parties who claimed to be the rightful allottees of the land were joined and opposed the application, contending the applicant's title was an illegal amalgamation founded on fraudulent documents. The respondents filed no response. The court framed three issues: whether its jurisdiction was properly invoked, whether the prerogative orders should issue, and costs. It held that the core dispute - whose competing allocation and title to the suit land was valid - involved seriously contested issues of fact requiring viva voce evidence, cross-examination and proof on a balance of probability, matters outside the restrictive scope of judicial review, which examines only the legality of the decision-making process. The court distinguished the applicant's authorities as arising from commercial transactions or petitions, and applied precedent that merit evaluations of competing claims to public land are best litigated in an ordinary suit. Dismissing the motion, the court held the judicial review jurisdiction had been improperly invoked, and awarded costs to the respondents and the interested parties.

Key legal issues

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01

Whether the judicial review jurisdiction of the court was properly invoked

Holding

The jurisdiction was improperly invoked because the dispute required determination of contested issues of fact regarding the validity of competing titles, a matter for an ordinary suit

Reasoning

The court found that multiple letters of allotment over the same land existed and that resolving whose title was valid would require examination of extensive documentation and testimony from many persons. Judicial review is restricted to the legality of the decision-making process, not contested facts or the merits. Granting the remedies sought would falsely suggest the title dispute had been resolved in the applicant's favour without proof. An ordinary suit was the proper forum.

p. 11
02

Whether orders of certiorari, prohibition and mandamus should issue

Holding

The remedies were refused because the applicant failed to discharge the burden of proof on the restricted judicial review record and the proper approach was to eschew judicial review orders in such a case

Reasoning

Relying on authority that judicial review remedies are unavailable where facts are disputed, the court held that neither the applicant, the respondents nor the interested parties could prove their claims on a balance of probability within the restrictive scope of judicial review. The proper approach was to decline the remedies rather than risk giving the erroneous impression that the title dispute had been settled.

p. 11
03

Who should bear the costs

Holding

The ex parte applicant was to pay costs to the respondents and the interested parties upon dismissal

Reasoning

Having dismissed the motion for improper invocation of the court's jurisdiction, the court exercised its ordinary discretion on costs in favour of the respondents and the interested parties, who had successfully resisted the application.

p. 12

Legal principles established

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  • Judicial review remedies are not available where material facts are disputed; courts will not determine contested questions of title in judicial review proceedings
  • Judicial review concerns the decision-making process, not the merits of the decision
  • Whoever asserts a legal right dependent on facts must prove those facts

Court orders

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  1. 1.The substantive judicial review notice of motion dated 25/8/2021 is dismissed
  2. 2.Costs of the application are awarded to the respondents and the interested parties

Authorities

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Legislation

  • Evidence ActSection 107 (burden of proof)
  • Fair Administrative Action ActGeneral (alleged non-observance)
  • Registration of Titles ActFraud provisions (as mentioned in quoted authority)

Cases cited (17)

  • A. M. v Premier Academy
    [2017] eKLR
  • Rhesa Shipping Co SA v Edmunds
  • Britestone Pte Ltd v Smith & Associates Far East Ltd
  • Republic v Zachariah Kahuthu & another (Sued as Trustees and on behalf of and as officials of the Kenya Evangelical Lutheran Church); Johaness Kutuk Ole Meliyio & 2 others (Interested Parties) Ex parte Benjamin Kamala & another
    [2020] eKLR
  • Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo
  • Republic v Ministry of Roads & another Ex-Parte Vipingo Ridge Limited & another
    [2015] eKLR
  • Chief Constable of North Wales Police v Evans
    (1982) 1 WLR 1155
  • Republic v Director of Immigration Services & 2 others Ex Parte Olamilekan Gbenga Fasuyi & 2 others
    [2018] eKLR
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
  • Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others
    [2014] eKLR
  • Kuria Greens v the Registrar of Titles and another
    Petition No 107 of 2010
  • Kongowea Market Estate Ltd v Registrar of Titles
    [2011] eKLR
  • R v Kisumu District Land Registrar and another
    [2010] eKLR
  • Gordon Metropolitan
    1920 2 KB 1080
  • Scott v Brown
    [1892] 2 QB 724
  • Super Nova Properties Ltd and another v the District Land Registrar Mombasa and others
    [2018] eKLR
  • Emfil Limited v the Registrar of Titles Mombasa and 2 others
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court over administrative decisions relating to land (the judgment does not cite a specific statutory or constitutional provision as the source of jurisdiction)

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, "Kiplangat v Cabinet Secretary of Lands and Physical Planning & 5 others; Chelagat & another (Interested Parties) (Land Case 8 of 2021) [2023] KEELC 803 (KLR)", Case Analysis (2023). Not stated in the judgment (substantive judicial review notice of motion dated 25/8/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/803/eng@2023-02-15

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