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ELCPartially AllowedJudicial Review Application dated 24th April 2023· [2024] KEELC 244 (KLR)

Kariuki v Land Control Board of Kakuzi/Ithanga (Environment and Land Judicial Review Case E002 of 2023) [2024] KEELC 244 (KLR)

Environment and Land Court
25 January 2024
3,474 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a Land Control Board to reconsider a land partition application and give written reasons, threatening automatic consent if it refuses without justification.

What this practically means

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Executive summary

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The Applicant, a co-registered owner of land parcel Kakuzi/Gituamba/Block 11/177, sought judicial review orders of certiorari and mandamus against the Kakuzi/Ithanga Land Control Board after it refused consent to partition the land. He relied on a succession court judgment directing equal subdivision between himself and Monica Mutono. He deponed that the Board verbally declined consent on 10th March 2023 and again on 14th March 2023 without giving any reasons in writing, contrary to Section 16 of the Land Control Act and Article 47 of the Constitution. The Respondent, through the Deputy County Commissioner Angela Makau, denied receiving any application for consent, asserting the Applicant only lodged a copy of the succession ruling, and contended the suit was misconceived and an abuse of process. Although the Respondent filed a Replying Affidavit, it filed no written submissions as directed, leaving the Applicant's averments uncontroverted. The court framed one issue: whether the judicial review was merited. Applying the Pastoli parameters of illegality, irrationality and procedural impropriety, the court held the Board was under a statutory duty to give written decisions with reasons; its failure was unprocedural and constituted abuse of discretion warranting judicial intervention. However, certiorari was refused because there was no written decision to quash. Mandamus issued compelling the Board to consider the application and give a reasoned written decision within 30 days, with a default mandamus to grant the consent. The Applicant was awarded costs.

Key legal issues

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01

Whether the Respondent's refusal of consent without written reasons was lawful

Holding

The failure to give written reasons breached Section 16 of the Land Control Act and Article 47 of the Constitution and amounted to abuse of discretion.

Reasoning

Section 16 of the Land Control Act imposes a statutory duty on the Board to communicate decisions in writing with reasons. The Applicant deponed that he presented his application and that the Board verbally declined consent without reasons. The Respondent denied receiving an application but failed to file submissions, leaving the Applicant's evidence uncontroverted. Article 47 obliged the Respondent to give a reasoned written decision; failure was unprocedural and an abuse of discretion entitling the court to intervene.

p. 6
02

Whether certiorari could issue against the Board's refusal

Holding

Certiorari cannot issue because there was no written decision to quash.

Reasoning

Certiorari quashes an existing decision. The court found no written decision denying the consent existed, so there was nothing to remove and quash. Only mandamus compelling consideration and a reasoned written decision was available.

p. 7

Legal principles established

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  • A Land Control Board has a statutory duty to give its decisions in writing stating reasons, and a refusal of consent without written reasons is unprocedural
  • A court may compel a public authority to consider an application and give a reasoned decision in writing, but cannot by mandamus dictate the outcome where the authority has discretion on the mode of performing the duty

Court orders

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  1. 1.An order of mandamus compelling the Respondent to consider the Applicant's application for consent to partition land parcel no Kakuzi/Gituamba/Block 11/177 in line with the judgement in Succession Cause No 1138 of 2007, and give reasons if the decision is adverse to the Applicant, within 30 days
  2. 2.In default of reasons, the Respondent shall be deemed to have abused discretion and a mandamus shall issue to compel the Respondent to issue the consent
  3. 3.The Applicant is entitled to costs of the Judicial Review Application

Authorities

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Legislation

  • Land Control ActSection 16
  • Civil Procedure RulesOrder 53 Rule 1(3)
  • Constitution of Kenya, 2010Articles 40, 47, 129
  • Fair Administrative Actions Act

Cases cited (8)

  • David Kiprugut Cheruiyot v Land Control Board of Belgut
    (2021) eKLR
  • Agricultural Finance Corporation v Land Control Board of Loitokitok & 3 others
    (2014) eKLR
  • Republic vs. Minister for Home Affairs and Others Ex Parte Sitamze
    [2008] 2 EA 323
  • Republic vs City Council of Kwale & Another exparte Kondo & 57 others
    (1998) 1 KLR(E&L)
  • Republic Vs Public Procurement Administrative Review Board & Another Ex parte Intertek Testing Services (EA)
    (2022) eKLR
  • Judicial Service Commission vs Mbalu Mutava & Another
    (2018) eKLR
  • Pastoli vs Kabale District Local Government Council & another
    (2008) 2 EA 300
  • Republic Vs Kenya National Examination Council exparte Gathenji & others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Order 53 of the Civil Procedure Rules, Article 47 of the Constitution and the Fair Administrative Action Act 2015

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 Land Control Board of Kakuzi/Ithanga (Environment and Land Judicial Review Case E002 of 2023) [2024] KEELC 244 (KLR)", Case Analysis (2024). Judicial Review Application dated 24th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/244/eng@2024-01-25

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