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ELCDismissedNot stated in judgment (Judicial Review Notice of Motion dated 30th January 2024)· [2024] KEELC 6172 (KLR)

Odongo v County Government of Vihiga (Executive Officer Department of Physical Planning) Executive Officer Department of Transport and Infrastructure) (Environment and Land Case Judicial Review Application 1 of 2024) [2024] KEELC 6172 (KLR)

High Court of Kenya
19 September 2024
EAE. Asati
1,396 words in judgment
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The bottom line

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The High Court dismissed a man's bid to force Vihiga County to open his access road, because the county had never actually been ordered to do it.

What this practically means

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Executive summary

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The Ex parte Applicant, Kepher Ojil Odongo, owner of land parcel 1139 West Bunyore/Ekwanda, sought orders of mandamus compelling the County Government of Vihiga to open a surveyed and demarcated road of access between his parcel and neighbouring parcels 1140, 1146 and 1138, in enforcement of a Principal Magistrate's court ruling dated 27/10/2022 which had adopted a Land Registrar's ruling of 15/6/2015. He also sought demolition of structures erected on the road reserve and security from the National Police Service during the road-opening exercise. The application was opposed on the ground of non-disclosure that one suit parcel had been subdivided with third parties holding title, and that a stay order issued on 24/5/2022 by Hon. S. Ongeri in Vihiga SPM ELC No. 38 of 2018 restrained resurvey affecting parcel West Bunyore/Ekwanda/1140 pending determination of that pending suit. Asati J applied the principles in Republic v Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants, holding that mandamus compels performance only of a public duty that has crystallized, and that where the existence of the duty is disputed the court will not compel its exercise. The court found no order had been made for re-opening of the road and that the 24/5/2022 stay order predated the orders sought to be enforced. The judicial review application was dismissed with no orders as to costs.

Key legal issues

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Whether mandamus lies to compel the County Government to open the access road

Holding

Mandamus refused. The County Government had not been ordered to re-open the road, and a pre-existing stay order in a pending suit over one of the suit parcels meant the public duty had not crystallized.

Reasoning

The court applied the principles in Republic v Town Clerk, Kisumu Municipality: mandamus compels performance of a public duty only where that duty has become due. The adopted Land Registrar ruling contained no order for re-opening the road, and a court order of 24/5/2022 stayed resurvey affecting parcel West Bunyore/Ekwanda/1140 pending determination of a pending suit. In such circumstances the court found no basis for mandamus.

p. 3

Legal principles established

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  • An order of mandamus compels a public officer to act in accordance with the law, and the Court will only issue a mandatory order if it concludes that it is the only decision lawfully open to the public body and no other legal remedy is available
  • Where there is a dispute as to whether a public duty has crystallized, the Court will not by mandamus compel the Respondent to exercise that duty until the dispute is sorted out

Court orders

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  1. 1.The Judicial Review application is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 4
  • Constitution of Kenya, 2010Article 57
  • Fair Administrative Action ActSection 4

Cases cited (1)

  • Republic v Town Clerk, Kisumu Municipality, Ex Parte East African Engineering Consultants
    [2007] 2 EA 441
Jurisdiction invoked
Judicial review jurisdiction; application expressed to be brought under Order 51 Rule 4 Civil Procedure Rules, Article 57 of the Constitution and section 4 of 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, "Odongo v County Government of Vihiga (Executive Officer Department of Physical Planning) Executive Officer Department of Transport and Infrastructure) (Environment and Land Case Judicial Review Application 1 of 2024) [2024] KEELC 6172 (KLR)", Case Analysis (2024). Not stated in judgment (Judicial Review Notice of Motion dated 30th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6172/eng@2024-09-19

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