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ELCDismissed· [2024] KEELC 91 (KLR)

Republic v District Commissioner, Narok North; Nkuruma (Suing as an administrator of the Estate of the Late Sironka Ole Nturere) (Exparte Applicant); Kumomali (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 91 (KLR)

High Court of Kenya
24 January 2024
3,127 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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The High Court dismissed a bid to quash a land appeal decision because the applicant, despite being properly served with summons, simply never showed up to defend himself.

What this practically means

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Executive summary

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The Ex-Parte Applicant, Sironka Ole Turere (since deceased and substituted by Joseph Nkuruma), sought an order of certiorari to quash the findings, judgment and ruling of the respondent (the Minister/District Commissioner) delivered on 10th May, 2011 in an appeal under Section 29 of the Land Adjudication Act concerning plot no. 331 in Kojong'a Adjudication Section, Narok North. He alleged he was never served with the appeal documents, hearing notices or summons, and that the decision was therefore a nullity for breach of natural justice. The respondent and the interested party opposed, filing affidavits including that of the Chief, Ntulele location, showing that summons dated 29th March, 27th April and 12th April 2011 were effected through the Chief's office for hearings on 12th April, 19th April and 4th May 2011, and that the Ex-Parte Applicant failed to appear on each occasion. The court reasoned that judicial review concerns the decision-making process rather than the merits, that the remedies are discretionary, and that the Ex-Parte Applicant had not rebutted the evidence of service; indeed, his timely filing of the application suggested awareness of the proceedings. Holding that service was proved and non-attendance was the Applicant's own choice, the court found no grounds for certiorari and dismissed the application with costs to the Interested Party.

Key legal issues

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01

Whether the Ex-Parte Applicant was afforded a fair hearing before the Minister's appeal decision

Holding

The court held that summons were served on the Ex-Parte Applicant through the office of the Chief and that his failure to attend was of his own making; no breach of natural justice was established

Reasoning

The Respondent and Interested Party adduced affidavit evidence of service of summons dated 29th March, 27th April and 12th April 2011 through the Chief of Ntulele location, corroborated by the Chief's own affidavit. The Ex-Parte Applicant did not rebut this evidence, and his ability to file the application timely suggested awareness of the proceedings. The court therefore found service proved and no natural justice breach.

p. 6
02

Whether the judicial review orders of certiorari should issue

Holding

Certiorari was refused as the Ex-Parte Applicant failed to establish grounds warranting the discretionary remedy

Reasoning

The court reiterated the discretionary nature of judicial review remedies, noting the court may consider the conduct of the applicant, undue delay, acquiescence or waiver. Given the finding that the Applicant was served and chose not to attend, no grounds for certiorari were made out, and the application was dismissed with costs to the Interested Party.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • The grant of certiorari, mandamus and prohibition is discretionary and the court may consider the conduct of the applying party

Court orders

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  1. 1.The Ex Parte Applicant's notice of motion application dated 16th November, 2011 is dismissed
  2. 2.Costs of the application to the Interested Party

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Land Adjudication ActSection 29
  • Land Adjudication ActSection 26
  • Legal Notice No. 73 of 25/4/1978

Cases cited (10)

  • Republic versus National Land Commission & Another
    [2016] eKLR
  • Municipal Council of Mombasa & Umoja Consultants Limited
    CA 185/01 (2001) KLR 4816
  • Commissioner of Land versus Kunste Hotel Limited
    (1995-1998) EA 1
  • Mirugi Kariuki versus Attorney General
    Civil Appeal no. 70 of 1991
  • Council for Civil Service Unions versus Minister for Civil Service
    [1985] AC 374
  • Republic versus Nairobi City County, Bernadetter Gitari, Gucharn Singh Sihra, Maeve Mary Sihra, Davinder Singh Barij and Sorej Kumari Bharij
    Misc Civil Application (JR) No. 59 of 2014
  • Chief Constable of the North Wales Police versus Evans
    (1982) 1 WLR
  • Republic versus Director of Immigration Services & 2 Others Exparte Olamilekan Gbenga Fasuyi & 2 Others
    [2018] eKLR
  • Zacahriah Wagunza & Another versus Office of the Registrar, Academic Kenyatta University & 2 Others
    [2013] eKLR
  • Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court pursuant to leave granted on 3rd November, 2011; order of certiorari sought against the Minister's decision under Section 29 of the Land Adjudication Act (Cap 284)

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, "Republic v District Commissioner, Narok North; Nkuruma (Suing as an administrator of the Estate of the Late Sironka Ole Nturere) (Exparte Applicant); Kumomali (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 91 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/91/eng@2024-01-24

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