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ELCPartially AllowedJudicial Review Notice of Motion dated 9/9/2022· [2023] KEELC 923 (KLR)

Kariuki v County Government of Kajiado & 2 others (Judicial Review . E007 of 2022) [2023] KEELC 923 (KLR)

Environment and Land Court
16 February 2023
1,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court quashed a land committee's decision made without a hearing, but refused to declare ownership, sending the parties back to a full hearing.

What this practically means

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Executive summary

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The ex parte Applicant, Benson Njendu Kariuki, moved the court by Notice of Motion under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act seeking certiorari to quash a decision of the 1st and 2nd Respondents communicated in letters dated 22/6/2022, that Plots A123 and A91 belonged to the 3rd Respondent, plus mandamus compelling his registration as owner and prohibition against implementation of the decision. He claimed he acquired the plots through succession to his deceased wife, who had purchased Plot A123 in 2001, but that the Respondents' dispute resolution process, to which he was invited by SMS, never afforded him a hearing: he was only asked to produce documents, was never shown the complainant, and was told by text to collect the verdict. The Respondents were served but filed no response. The court, guided by Article 47 and the Fair Administrative Action Act, applied the Pastoli test of illegality, irrationality and procedural impropriety and found the uncontroverted evidence showed the decision was reached without a hearing, breaching natural justice, and accordingly quashed it by certiorari. Mandamus was declined because a live dispute over the plots ought to be resolved in the presence of all parties, and prohibition was declined as the impugned decision was already made and only certiorari can quash an existing decision. The Applicant therefore succeeded only in part, with no orders as to costs.

Key legal issues

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01

Whether the decision of the 1st and 2nd Respondents was made in breach of the rules of natural justice and fair administrative action

Holding

Yes; the decision was arrived at without hearing the ex parte Applicant, who was merely asked to produce documents, was never shown the complainant, and was notified of the verdict by text, warranting certiorari

Reasoning

The court was guided by Article 47 of the Constitution and the Fair Administrative Action Act. Relying on Pastoli, procedural impropriety includes failure to act fairly. The Respondents were served and filed no response, so the Applicant's averments were uncontroverted. The court found due process may not have been followed and granted certiorari to quash the decision of 22/6/2022.

p. 3
02

Whether mandamus should issue to compel registration of the Applicant as owner of the plots

Holding

No; mandamus was declined because a genuine dispute may exist and compelling registration would lock out the complainant

Reasoning

The court reasoned that granting mandamus to register ownership would pre-empt the underlying land dispute, which should be heard and resolved in the presence of all parties. The judicial review remedy could quash the flawed decision but could not be used to determine title in favour of one side without a full hearing.

p. 4
03

Whether prohibition should issue against the Respondents

Holding

No; prohibition is prospective and cannot correct a decision already made

Reasoning

Following Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge, prohibition forbids an inferior tribunal from continuing proceedings in excess of jurisdiction but does not lie to correct a wrong decision on the merits. Since the impugned decision was already made, certiorari was the proper remedy and prohibition was declined.

p. 4

Legal principles established

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  • To succeed in judicial review an applicant must show the decision is tainted with illegality, irrationality or procedural impropriety, and procedural impropriety includes failure to act fairly or observe the rules of natural justice
  • A decision arrived at without hearing the affected party violates the rules of natural justice and is liable to be quashed by certiorari
  • Prohibition is directed to the future and does not lie to correct a wrong decision on the merits; only certiorari can quash a decision already made

Court orders

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  1. 1.An order of certiorari issued removing into the court and quashing the decision/ruling of the 1st and 2nd Respondents contained in the letters dated 22/6/2022 that plot numbers A123 and A91 belong to the 3rd Respondent
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 rule 6; Order 53 rules 1, 2, 3 and 4
  • Law Reform Act Cap 26 Laws of KenyaSections 8 and 9 (and Section 8(1))
  • Constitution of KenyaArticles 2, 23, 27(4), 40, 47, 48, 50(1)(2) and 165
  • Fair Administrative Action ActNo 4 of 2015

Cases cited (3)

  • Pastoli v Kabale District Local Government Council & others
    (2008) E.A. 300
  • R v Chief Magistrates Court Nyahururu & 2 others ex parte Jacinta Wangechi Kabia
    (2022) eKLR
  • Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & others
    Civil Appeal No 266 of 1996
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26), Orders 50(6) and 53(1)-(4) of the Civil Procedure Rules, and Articles 2, 23, 27(4), 40, 47, 50 and 165 of the Constitution

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, "Kariuki v County Government of Kajiado & 2 others (Judicial Review . E007 of 2022) [2023] KEELC 923 (KLR)", Case Analysis (2023). Judicial Review Notice of Motion dated 9/9/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/923/eng@2023-02-16

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