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ELCDismissedJudicial Review proceedings, Notice of Motion dated 14th November 2022

Madey & 35 others v Community Land Registrar North Eastern Mandera & 2 others; Hussein & 27 others (Interested Parties) (Environment and Land Judicial Review Case E001 of 2022) [2024] KEELC 4767 (KLR)

Environment and Land Court
19 June 2024
3,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that contested land ownership must be decided by hearing oral evidence, not through judicial review applications.

What this practically means

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Executive summary

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The Ex-parte Applicants, a farming community claiming occupation of Yuub Farms off the Isiolo-Mandera Road since 1968, sought judicial review orders of mandamus to compel the Respondents to register them as Yuub Farmers Community and to register the suit property in their name, and an order of prohibition restraining registration of any interest in favour of third parties. The Respondents did not respond despite service. The Interested Parties, who claimed the same land as Bergadud Farmers pursuant to allotment letters from the County Government of Mandera, opposed the application, arguing that judicial review cannot resolve contested land ownership. The court noted that the same parties had litigated ownership in Mandera Principal Magistrate's Civil Case No. 1 of 2015, which was dismissed for want of jurisdiction without a determination on the merits, leaving the ownership question unresolved. The court examined the Community Land Act framework, holding that before a community can be registered as owner of specific community land, all claims and disputes over that land must first be resolved under Section 8(5)(c), and that Sections 39 to 42 provide dispute resolution mechanisms. Relying on Republic v Officer Commanding Traffic Nairobi Area, Sanghani Investment Limited and Republic v Registrar of Titles; Ex-parte Kenya Shell Ltd, the court held that judicial review is concerned only with the decision-making process and cannot adjudicate contested ownership requiring viva voce evidence. Since compelling registration would leave the ownership dispute unresolved, the court would be acting in vain. The Notice of Motion was dismissed with each party bearing their own costs, the parties being directed to pursue adjudication in a competent court or await a Section 8 adjudication programme in Mandera County.

Questions the Court framed

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

  1. 1.Whether judicial review was the appropriate remedy given that the central issue is ownership of the disputed land
  2. 2.Whether the Respondents failed to perform their statutory duties under the Community Land Act so as to warrant orders of mandamus and prohibition
  3. 3.Whether the orders sought should be granted

Key legal issues

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01

Whether judicial review lies to compel registration of community land where ownership is disputed

Holding

It does not; where the central issue is land ownership requiring oral evidence and cross-examination, judicial review is the wrong forum and the discretionary remedies should be refused

Reasoning

The Applicants and Interested Parties both stake ownership claims to the same land, the Interested Parties holding allotment letters and the Applicants claiming occupation since 1968. The magistrate's court dismissed the prior suit for want of jurisdiction without determining ownership. Judicial review is concerned only with the decision-making process, with evidence confined to affidavits; it cannot resolve contested ownership. Even if mandamus issued, the ownership dispute would remain unresolved, so the court would act in vain.

p. 8
02

Whether the Respondents' failure to register the community justified mandamus under the Community Land Act

Holding

Registration under Section 8 of the Community Land Act presupposes adjudication and resolution of all claims over the land; with a live ownership dispute, the statutory process could not proceed

Reasoning

The court noted it was not apparent whether recognition and adjudication of community land had occurred in Mandera County under Section 8, and that the Act requires all claims to be lodged and resolved under Section 8(5)(c) before registration. Sections 39 to 42 provide dispute resolution mechanisms. The Applicants sought to short-circuit the Interested Parties with whom they had a running dispute, but even under the community land registration process the ownership dispute would have to be resolved.

p. 6

Legal principles established

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  • Before a community can be registered as owner of specific community land, all claims and disputes touching on that land must first be resolved and determined
  • Judicial review is not the appropriate forum to resolve disputed questions of land ownership requiring viva voce evidence
  • Judicial review remedies are discretionary and a court should not act in vain

Court orders

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  1. 1.The Notice of Motion application dated and filed on 14th November 2022 is dismissed
  2. 2.Each party to bear their own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review under Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules

Relief refused

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Order of mandamus compelling the Respondents to register the Applicants as Yuub Farmers Community and to register Yuub Farms in their name

The dispute is one of ownership of land requiring viva voce evidence, which cannot be resolved in judicial review proceedings; the court's discretion would be exercised in vain

p. 7

Order of prohibition preventing the Respondents from registering any interest in the suit property in favour of third parties

Same reason - ownership dispute cannot be adjudicated in judicial review proceedings

p. 8

Costs

Each party to bear their own costs of the suit

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.

In my view, and on the basis that the dispute herein is one of ownership of the suit property and requires determination in an appropriate forum other than in these proceedings, the orders sought should not be granted.
p. 7Judicial review unsuitable for land ownership disputes
The Court can only exercise that discretion in a situation where such exercise will result in the resolution of the issues in dispute. In the circumstances herein, it is clear that even if the Respondents are compelled to register the Petitioners, the dispute as to ownership of the suit property will remain unresolved. A Court of Law should not act in vain.
p. 7Discretionary nature of judicial review remedies
For the foregoing reasons I find and hold the Judicial Review application to be lacking in merit. The Notice of Motion application dated and filed on 14th November 2022 is dismissed.
p. 8Final orders - dismissal
Each party to bear their own costs of the suit.
p. 8Final orders - costs

Issues in the judgment

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minor

The judgment variously refers to the Applicants as 'Petitioners' in one passage, an apparent typographical inconsistency

minor

The Interested Parties are described as holding allotment letters issued by the County Government of Mandera in January 2013 in paragraph 16, whereas their replying affidavit refers to allotment vide a letter dated 7th May 1991

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, "Madey & 35 others v Community Land Registrar North Eastern Mandera & 2 others; Hussein & 27 others (Interested Parties) (Environment and Land Judicial Review Case E001 of 2022) [2024] KEELC 4767 (KLR)", Case Analysis (2024). Judicial Review proceedings, Notice of Motion dated 14th November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4767/eng@2024-06-19

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