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ELCAllowedEnvironment and Land Judicial Review Case E001 of 2023

Republic v Homa Bay County Land Surveyor & 2 others; Nyang'or & another (Exparte Applicants)

Environment and Land Court of Kenya
29 November 2023
1,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court quashed a county's decision to carve an access road through private land because the owners were never given a hearing.

What this practically means

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Executive summary

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The two ex parte applicants obtained leave on 28th February 2023 to commence judicial review proceedings against the Homa Bay County Land Surveyor, the Homa Bay County Land Registrar and the Attorney General. By a Notice of Motion dated 30th March 2023, they sought certiorari to quash the respondents' decision to create an access road on land parcel Kanyamwa/Kayambo/Kwamo/2951, mandamus to compel the Land Registrar to remove the road, and prohibition against any further feature creation of the road, plus costs. The applicants' case was that the 1st applicant was the initial proprietor of the suit land and sold it to the 2nd applicant, the registered owner, and that the respondents unreasonably created the access road without justification and contrary to the rules of natural justice. The respondents were served, as shown by an affidavit of service, but neither responded to the application nor filed submissions. The court framed a single issue: whether the application had merit. Relying on Articles 22(1), 23(3)(f), 40 and 47(1) of the Constitution and Section 4 of the Fair Administrative Action Act, and applying CCSU v Ministers for the Civil Service, the Kenya Re-Insurance Corporation case, Yaya Towers and Ogada v Mollin, the court held that the respondents failed to give the applicants an opportunity to be heard before creating the road, violating their right to property and fair administrative action. Finding the application well presented, cogent and unchallenged, the court allowed it in terms of prayers (a), (b) and (c), issuing certiorari, mandamus and prohibition, and ordered each party to bear their respective costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judicial review application dated 30th March 2023 has merit

Key legal issues

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01

Whether the respondents' creation of an access road on the suit land without hearing the applicants violated their constitutional rights

Holding

Yes - the respondents failed to give the applicants an opportunity to be heard, violating Articles 40 and 47(1) of the Constitution and Section 4 of the Fair Administrative Action Act.

Reasoning

The applicants, as registered proprietor and prior proprietor of the suit land, complained that the respondents unreasonably created an access road across it without justification. The court found the respondents failed to afford the applicants an opportunity of advancing reasons for contesting the road, contrary to the rules of natural justice as explained in CCSU and Kenya Re-Insurance Corporation. The respondents, though served, did not respond or file submissions, leaving the application unchallenged.

p. 3
02

Whether the unchallenged application met the requisite standard of proof

Holding

Yes - the application was well presented, cogent and unchallenged, and the applicants proved their case to the requisite standard.

Reasoning

The respondents were duly served with the application as evidenced by an affidavit of service sworn by the applicants' counsel but failed to respond or file submissions. Relying on Ogada v Mollin, the court treated the application as unopposed. On the material before it, including the certificate of official search and sketch map, the court found the applicants had proved their case against the respondents to the requisite standards.

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the finding.
  • Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Court orders

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  1. 1.Certiorari to quash the decision of the County Land Surveyor and County Land Registrar to create an access road on land parcel number Kanyamwa/Kayambo/Kwamo/2951
  2. 2.Mandamus to compel the County Land Registrar to remove the access road created on the suit land
  3. 3.Prohibition prohibiting any feature creation of the access road on the suit land
  4. 4.Each party to bear their respective costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22(1) and 23(3)(f) of the Constitution of Kenya, 2010 - judicial review as appropriate relief for enforcement of the Bill of Rights

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application dated 30th March 2023 is allowed in terms of orders (a), (b) and (c) sought therein as stated in paragraph 2 (a) (b) and (c) hereinabove.
p. 3disposition
Given the nature of the instant matter, parties to bear their respective costs of the application.
p. 3costs
judicial review remedy is concerned with reviewing not the merits of the finding but the decision making process itself
p. 3scope of judicial review
The application reveals that the respondents failed to give the 1st and 2nd applicants an opportunity of advancing reasons for contesting the access road across the suit land
p. 3breach of natural justice

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 Homa Bay County Land Surveyor & 2 others; Nyang'or & another (Exparte Applicants)", Case Analysis (2023). Environment and Land Judicial Review Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21811/eng@2023-11-29

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