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ELCAllowedJudicial Review Notice of Motion dated 13th May 2024· [2025] KEELC 1447 (KLR)

Sein v County Public Land Registrar & another; Sein (Interested Party) (Judicial Review E001 of 2024) [2025] KEELC 1447 (KLR)

High Court of Kenya (Environment and Land Court)
20 March 2025
1,852 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The High Court quashed Kajiado officials' decision to take away a landowner's plot because the process was unfair, undocumented, and gave no reasons.

What this practically means

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Executive summary

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The Ex-parte Applicant, Pasha Sein, claimed to be the duly registered owner of plot No. B141 (formerly LR No. 9/Business) at Sultan Hamud Trading Centre. Following a complaint by his brother, the Interested Party, a dispute resolution meeting was convened at Kajiado Lands Office on 13th December 2023. The Applicant attended and produced ownership documents, asserting the Interested Party produced none. Thereafter, by a letter dated 2nd February 2024, the County Public Land Registrar, communicating a decision of the County Executive Committee Member in charge of Lands and Physical Planning, directed the Applicant to surrender the letters of allotment so the plot could be registered to the Interested Party on the basis that the original owner was Kanai Ole Sein. The Applicant moved the Court by Notice of Motion under Articles 23(3)(f) and 47 of the Constitution, Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, seeking certiorari to quash the proceedings and decision and prohibition against its execution. He argued the decision was ultra vires, procedurally improper (the deciding body differed from the hearing committee), and made without affording him a hearing, reasons, or supply of proceedings. The Respondents and Interested Party did not file responses; the application proceeded by written submissions. The court held that alternative dispute resolution under Article 159(2)(c) must respect constitutional guarantees, found no proceedings or minutes of the hearing existed, and that Articles 35, 40 and 47 had been breached. Applying the Gathenji Njoroge principles, the court granted certiorari quashing the decision, prohibition against its execution, and costs to the Applicant.

Key legal issues

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01

Whether the decision of 2nd February 2024 violated fair administrative action and natural justice and should be quashed

Holding

Yes. The hearing was conducted by one committee but the decision was rendered by another, no proceedings or minutes were supplied, and the Applicant was denied reasons and information, breaching Articles 35, 40 and 47 and the rules of natural justice.

Reasoning

The court noted there were no proceedings or minutes of the hearing, so it could not verify who testified or what evidence was produced. The Applicant had asked for certified proceedings but they were never supplied, curtailing the right to information under Article 35. Article 47 entitled the Applicant to written reasons where fundamental freedoms were adversely affected. Without such records the court could not be satisfied that a fair hearing under Article 50 was accorded, hence natural justice was breached.

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02

Whether alternative dispute resolution mechanisms may divest a person of property

Holding

ADR including traditional dispute resolution is recognised under Article 159(2)(c) but must operate within statutory and constitutional precincts, upholding the right to fair trial and to be heard.

Reasoning

The court accepted that Article 159(2)(c) promotes alternative forms of dispute resolution including traditional mechanisms as aids to access to justice. However, such mechanisms are subject to clause (3) and cannot contravene the Bill of Rights, be repugnant to justice or morality, or be inconsistent with the Constitution or written law. The committee's process failed these constitutional thresholds.

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Legal principles established

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  • An order of certiorari will issue where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.
  • Prohibition lies for excess or absence of jurisdiction and for departure from the rules of natural justice.

Court orders

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  1. 1.A writ of certiorari quashing the proceedings, findings and decision of the Respondents over parcel of land allotment No. BI41 (Formerly LR. No 9/Business) in the letter dated 2nd February 2024
  2. 2.An order of prohibition against the Respondents prohibiting them and the Interested Party from proceeding with the execution of the aforesaid decision
  3. 3.The Ex-parte Applicant awarded costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)(f)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(c) and (3)
  • Constitution of KenyaArticle 35
  • Constitution of KenyaArticle 40(3)
  • Constitution of KenyaArticle 50
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53 Rule 1(1), (2) and (3)

Cases cited (2)

  • R vs Kenya National Examination Council ex-parte Geofirey Gathenji Njoroge & 9 others
    [1997] eKLR; [1997] KECA 58 (KLR)
  • R vs Kenya Revenue Authority ex parte Style Industries Ltd
    [2019] eKLR
Jurisdiction invoked
Articles 23(3)(f) and 47 of the Constitution; Sections 8 and 9 of the Law Reform Act; Order 53 Rule 1(1), (2) and (3) of the Civil Procedure Rules

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, "Sein v County Public Land Registrar & another; Sein (Interested Party) (Judicial Review E001 of 2024) [2025] KEELC 1447 (KLR)", Case Analysis (2025). Judicial Review Notice of Motion dated 13th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1447/eng@2025-03-20

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