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ELCAllowedELC JR No. E001 of 2024 (Eldoret)· [2025] KEELC 147 (KLR)

Republic v Deputy County Commissioner, Turbo Sub-County & another; Lagat (Exparte Applicant) (Judicial Review E003 of 2024) [2025] KEELC 147 (KLR)

Environment and Land Court
23 January 2025
JOJ. M Onyango
4,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a Deputy County Commissioner's order forcing a landowner to transfer his land, confirming only land courts can decide land ownership disputes.

What this practically means

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Executive summary

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The ex-parte Applicant, registered proprietor of land parcel Kiplombe/Kiplombe Block 2 (Kipsang Suge) 44, sought judicial review orders of certiorari and prohibition against a decision of the Deputy County Commissioner dated 17th October 2023, which resolved that a complainant, Jonah Seroney, was the rightful owner of 1½ acres of the suit land and directed the Applicant to transfer it with immediate effect. The Respondents contended that the report was merely advisory, flowing from a mediation mandate under the Land Act and the National Land Commission Act, that it was not binding or capable of implementation, and that the application failed to meet the judicial review threshold. The court, having two issues for determination, first found that a competent decision existed: the report's wording contained binding directions with no provision for court confirmation, so it was not advisory. Second, on the merits of the review grounds, the court held that the 1st Respondent had no jurisdiction, delegated or otherwise, to determine disputes on title to land, such jurisdiction being vested exclusively in the Environment and Land Court and selected magistrates' courts; the decision was therefore ultra vires, null and void. The court also found the decision irrational, as the 1½-acre award lacked proof given the admitted 1-acre sale and the measured 1.4 acres, and no privity linked the complainant to the Applicant. However, the claim of denial of a fair hearing was unsubstantiated since the Applicant attended the proceedings. Prohibition was granted prospectively against future interference. The Motion was allowed, certiorari and prohibition issued, and costs awarded to the ex-parte Applicant against the Respondents.

Key legal issues

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01

Whether the Deputy County Commissioner's report of 17th October 2023 was a decision amenable to judicial review

Holding

Yes - it was a determination reached after a purported hearing, directing transfer of land, not merely advisory.

Reasoning

The court examined the report's wording and found it concluded with binding directions that the Applicant transfer the land 'with immediate effect', with no provision for confirmation by a court. The Respondents' characterisation of it as advisory was rejected; it matters not that it was not presented for implementation. A decision existed capable of being quashed.

p. 5
02

Whether the 1st Respondent had jurisdiction to hear and determine the land dispute

Holding

No - the Deputy County Commissioner had no delegated or corresponding jurisdiction over title to land, rendering the decision ultra vires, null and void.

Reasoning

Jurisdiction over use, occupation and title to land vests exclusively in the ELC and selected magistrates' courts under Article 162(2)(b) and Section 13 of the ELC Act. Nothing in the Constitution, the Land Act or the National Land Commission Act delegates any such function to the Deputy County Commissioner or the provincial administration. The Respondent also made a legal finding on adverse possession, a matter solely within the ELC's jurisdiction.

p. 7
03

Whether the decision was irrational

Holding

Yes - the decision failed the rationality test.

Reasoning

The complainant claimed 1½ acres, but the ground visit established only 1.4 acres, and the Applicant admitted selling only 1 acre. There was no indication of the source of the additional 0.5 acre, and no agreement linked Paulina Singoei (the complainant's predecessor) to the Applicant. Awarding the full claimed acreage without sufficient proof defied logic and comprehensible justification.

p. 8
04

Whether the ex-parte Applicant was denied a fair hearing

Holding

No - the claim of denial of hearing was unsubstantiated; the Applicant was aware of and attended the proceedings.

Reasoning

From the annexures, the Applicant knew of the proceedings and was in attendance. The vice was not procedural unfairness but the complete lack of jurisdiction of the decision-maker, which rendered the proceedings and resulting decision illegal and irrational.

p. 8
05

Whether an order of prohibition should issue

Holding

Yes - prohibition lies against future interference since the 1st Respondent lacks jurisdiction over land disputes.

Reasoning

Prohibition is prospective; it does not correct past decisions, but the Applicant sought it against future interference. Since any continued deliberations by the 1st Respondent on the dispute would be without jurisdiction and illegal, the order was warranted.

p. 9

Legal principles established

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  • A court cannot quash a non-existent decision; the decision to be quashed must first be ascertained to be in existence.
  • Judicial review concerns the decision-making process, not the merits of the decision.
  • Jurisdiction flows from the Constitution or legislation; a body cannot arrogate to itself jurisdiction exceeding that conferred by law.
  • Only the Environment and Land Court and selected magistrates' courts have jurisdiction to determine title to land; a finding of adverse possession can only be issued by the ELC.

Court orders

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  1. 1.An order of Certiorari to remove into the court and quash the decision and/or resolution of the 1st Respondent dated 17th October 2023 regarding Title No. Kiplombe/Kiplombe Block 2 (Kipsang Suge) 44
  2. 2.An order of Prohibition to cease all actions by the 1st Respondent in interfering with the ex-parte Applicant's right to peaceful ownership of land Kiplombe/Kiplombe Block 2 (Kipsang Suge) 44
  3. 3.The Respondents shall bear the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticles 62(2) and (3), 67(1), 67(2)(f)
  • Fair Administrative Actions ActSections 4, 7, 7(2), 7(2)(a)
  • Environment and Land Court ActSections 13, 13(2)(b)
  • Land Registration ActSections 25, 101
  • Land Act, 2012Section 150
  • National Land Commission Act, 2012Sections 4(2)(g) and (m), 5(1)(f)
  • Civil Procedure Rules 2010Order 53 Rule 1

Cases cited (14)

  • Kenya National Examination Council vs Republic ex parte Geofirey Gathenji Njoroge & 9 Others
    (1997) eKLR
  • Republic vs Public Procurement Administrative Review Board & 2 Others ex parte Rongo University
    (2018) eKLR
  • Kenya Women Finance Trust vs Bernard Oyugi Jaoko & 2 Others
    (2018) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance
    (2013) eKLR
  • Republic vs Judicial Service Commission ex parte Pareno
    (2004) 1 KLR 203
  • Republic vs The Minister for Transport & 4 Others ex parte Kamlesh Mansukhal Dave
    (2012) eKLR
  • Republic vs Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    (2013) eKLR
  • Republic vs Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • The Owners of Motor Vessel 'Lilian S' vs Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
  • Esther Victoria Wanjiku Mahoro vs Mary Wambui Githinji & 3 others
    (2021) eKLR
  • Pastoli vs Kabale District Local Government Canal & Others
    (2008) 2 EA 300
  • In the Matter of an Application for Judicial Review and for the Orders of Certiorari, Prohibition and Mandamus & Others vs The County Council of Narok & 9 Others
    [2009] KEHC 2108 (KLR)
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; judicial review under Order 53 of the Civil Procedure Rules and the Fair Administrative Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Deputy County Commissioner, Turbo Sub-County & another; Lagat (Exparte Applicant) (Judicial Review E003 of 2024) [2025] KEELC 147 (KLR)", Case Analysis (2025). ELC JR No. E001 of 2024 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/147/eng@2025-01-23

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