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ELCDismissedJudicial Review (Chamber Summons Application dated 8th May, 2023), Machakos· [2024] KEELC 1427 (KLR)

Republic v County Surveyor of Machakos & another; Mbindyo (Exparte Applicant); Kithome & 2 others (Interested Parties) (Environment and Land Miscellaneous Application 7 of 2023) [2024] KEELC 1427 (KLR)

High Court of Kenya
13 March 2024
COChristine Ochieng
2,272 words in judgment
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The bottom line

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The High Court dismissed a landowner's late attempt to overturn a county surveyor's boundary decision, ruling judicial review was the wrong legal route.

What this practically means

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Executive summary

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The Ex-parte Applicant, Gregory Muendo Mbindyo, applied by Chamber Summons dated 8th May, 2023 for leave to commence judicial review proceedings seeking certiorari to quash the decision/report of the County Surveyor, Machakos dated 16th November, 2020, prohibition against its implementation, mandamus compelling boundary rectification and verification in the presence of his appointed surveyor, and that any leave granted operate as a stay. He claimed the Surveyor had no authority to conduct a boundary exercise over land belonging to un-administered estates of deceased persons, that a road was created that never existed, and that his right to a fair hearing was infringed. The Respondents filed a Notice of Preliminary Objection contending the application was time-barred under Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act, while the Interested Parties maintained the Applicant participated in the survey and had already filed Machakos ELC No. 60 of 2021. The court framed a single issue: whether the Applicant was entitled to leave and whether it could operate as a stay. Relying on the settled nature of judicial review as concerned with the decision-making process rather than merits, and the principle that contested issues of fact render judicial review unsuitable, the court held that the Applicant's complaints fell outside the ambit of judicial review. He had participated in the process, the decision was two and a half years old, and he should have appealed the Surveyor's decision. The application was dismissed with no order as to costs.

Key legal issues

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01

Entitlement to leave to commence judicial review proceedings

Holding

The Applicant was not entitled to leave because his complaints did not fall within the ambit of judicial review; he participated in the boundary process, should have appealed the Surveyor's decision, and was out of time

Reasoning

The court noted the Applicant actually participated in the boundary verification exercise and did not protest when served with summons. Boundary disputes are governed by Section 18 of the Land Registration Act and the law prescribes an appeal period. The Applicant sought leave two and a half years after the decision, when the road had already been established, and had already filed Machakos ELC No. 60 of 2021. His issues therefore required determination of contested facts and did not lie in judicial review.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits or private rights
  • Where resolution of a dispute requires determination of contested issues of fact, judicial review is not suitable

Court orders

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  1. 1.Dismissal of the Chamber Summons Application dated 8th May, 2023
  2. 2.No order as to costs
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010

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 County Surveyor of Machakos & another; Mbindyo (Exparte Applicant); Kithome & 2 others (Interested Parties) (Environment and Land Miscellaneous Application 7 of 2023) [2024] KEELC 1427 (KLR)", Case Analysis (2024). Judicial Review (Chamber Summons Application dated 8th May, 2023), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1427/eng@2024-03-13

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