Kihoro v Commissioner of Lands & 3 others
The bottom line
#Kenya's Court of Appeal restored a Nanyuki landowner's title, ruling that a challenge to the land allocation came far too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in failing to consider that there was no decision in existence upon which the court could exercise its judicial review jurisdiction, and whether the application for certiorari was sought within the timelines set under the law
- 2.Whether the learned judge erred in finding that there had been procedural impropriety on the part of the 1st and 2nd respondents in exercise of their statutory duty
- 3.Whether the learned judge erred in applying the doctrine of legitimate expectation
- 4.Whether the learned judge erred in failing to ensure a parity of reasoning for similar sets of facts and the law
Key legal issues
#Timeliness of certiorari and existence of an impugnable decision
The allotment decision was an impugnable decision under Order 53 Rule 2; leave sought 11 years after registration was out of time, rendering the judicial review application incompetent.
The court distinguished the High Court's view that registration was not a judgment, order, decree, conviction or other proceedings. It held the allotment decision fell within Order 53 Rule 2, so the six-month rule applied. Registration occurred on 23rd January 2002; leave was sought on 17th January 2013, about 11 years later. The 4th respondent's claim of late awareness was uncontradicted by evidence of the appellant's possession since 1999.
Procedural impropriety in the allocation
No procedural impropriety was established; the process was transparent and the 1st and 2nd respondents had filed grounds of opposition.
The judge's finding rested on the cancellation letter of 29th June 2001 and the respondents' alleged failure to reply. The court found the appellant had successfully appealed against that cancellation, official correspondence showed the allocation was reconsidered and retained subject to the 30-metre riparian reserve, and the respondents had in fact filed grounds of opposition dated 1st October 2013 denying impropriety.
Doctrine of legitimate expectation
The doctrine was wrongly applied; there was no unequivocal representation or promise by the 1st respondent to the 4th respondent.
Citing de Smith's Judicial Review, the court held a legitimate expectation arises where a decision-maker leads someone to believe they will receive or retain a benefit. Nothing in the record showed any promise to the 4th respondent, nor that it had even complained about the allocation. Its position that the land was both available to it and riparian reserve was self-defeating.
Leave not obtained before filing judicial review (Civil Appeal No. 62)
The application for leave was filed simultaneously with the substantive motion; the judge's finding that leave was granted earlier was erroneous and the proceedings were null and void ab initio.
The record showed the leave application dated 22nd July 2002 was filed together with the substantive motion on 3rd February 2003. The judge's statement that leave was granted on 14th January 2003 had no evidential foundation, so the proceedings were a nullity.
Legal principles established
#- An order of certiorari under Order 53 Rule 2 and Section 9(3) of the Law Reform Act must be sought within six months where the impugned decision falls within that regime; an allotment decision falls within its ambit.
- Judicial review is concerned with the decision-making process, not private rights or the merits of the decision.
- A legitimate expectation requires an unequivocal representation by the decision-maker that a benefit or hearing will be given; a cancellation letter citing public outcry is not such a representation.
- Where leave for judicial review was never obtained before filing the substantive motion, the proceedings are null and void ab initio.
Court orders
#- 1.Appeal allowed in Civil Appeal Nos. 60, 61 and 62 of 2015, with the finding in the lead appeal applying mutatis mutandis to Appeals 61 and 62
- 2.Each party to bear its own costs in the appeals
- 3.4th respondent's Cross Appeal dismissed in its entirety with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nyeri
- Misc. Application No. 3 of 2013 (and Civil Appeal No. 61 of 2015)
- Jurisdiction invoked
- First appellate jurisdiction under Rule 29 of the Court of Appeal Rules
- Consolidated with
- Civil Appeal 61 of 2015, Civil Appeal 62 of 2015
Relief refused
#4th respondent's cross-appeal contention that the suit property was riparian land
Not addressed in submissions and no evidence supported it; evidence showed the property was well off within the 30-metre riparian reserve
Costs
Each party will bear its own costs in the appeals; the 4th respondent's Cross Appeal dismissed with no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion therefore and in light of our above findings and having considered Civil Appeal Numbers 60, 61 and 62 of 2015, we come to the inevitable conclusion that these appeals must all succeed and we hereby allow the same with an order that each party will bear its own costs.
Accordingly, the 4th respondents Cross Appeal is hereby dismissed in its entirety with no order as to costs. It is so ordered.
In our view, this decision fell under the ambit of Order 53 Rule 2 of the Civil Procedure Rules and hence the six-months rule was applicable.
there was no evidence of such leave having been obtained and as such the proceedings were null and void Ab initio
Such an expectation arises where a decision-maker has led someone affected by the decision to believe that he will receive or retain a benefit or advantage (including that a hearing will be held before a decision is taken).
Issues in the judgment
#Inconsistent date of enforcement notice
Erroneous internal cross-reference to Civil Appeal No 26 of 2016 on parity ground
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihoro v Commissioner of Lands & 3 others", Case Analysis (2022). Civil Appeal 60 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/958/eng@2022-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.