[2013] KEHC 2059 (KLR)
The court found that the applicants had established sufficient grounds for the grant of leave to apply for orders of prohibition and mandamus. The basis for this finding was that the declaration in question was made after a meeting in which only one of the two affected communities (the Tharaka Community) was...
Source-derived case information.
- Citation
- [2013] KEHC 2059 (KLR)
- Parties
- Applicant: Njeru Mairani; Applicant: David Njiru Mutua; Applicant: Daniel Nyaga; Respondent: Attorney General; Respondent: Commissioner of Lands; Respondent: Director of Land Adjudication; Respondent: Chief Land Registrar; Respondent: District Land Adjudication Officer Meru South/Maara Districts
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 12 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders of Prohibition and Mandamus
- Outcome
- Leave granted to apply for orders of prohibition and mandamus; matter transferred to Environment and Land Court; leave to operate as stay.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Natural Justice, Land Adjudication, Prohibition Order, Mandamus Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Mairani
Applicant
David Njiru Mutua
Applicant
Daniel Nyaga
Applicant
Attorney General
Respondent
Commissioner of Lands
Respondent
Director of Land Adjudication
Respondent
Chief Land Registrar
Respondent
District Land Adjudication Officer Meru South/Maara Districts
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders of Prohibition and Mandamus
Legal Issues
- 1 Whether the applicants are entitled to leave to apply for orders of prohibition and mandamus against the respondents in respect of Declaration number ADM/LA/4/118 dated 4th October 2012.
- 2 Whether the declaration was made in breach of the rules of natural justice by failing to involve all affected communities.
Ratio Decidendi
The court found that the applicants had established sufficient grounds for the grant of leave to apply for orders of prohibition and mandamus. The basis for this finding was that the declaration in question was made after a meeting in which only one of the two affected communities (the Tharaka Community) was represented, while the Mbeere Community was excluded. This exclusion constituted a breach of the rules of natural justice, as all affected parties are entitled to be heard before a decision affecting their rights is made. The court further noted that, although the matter ought to have been filed in the Environment and Land Court, it was appropriate to grant leave and transfer the...
Court Disposition
Leave granted to apply for orders of prohibition and mandamus; matter transferred to Environment and Land Court; leave to operate as stay.
Orders
- Leave is granted to the applicants to apply for orders of prohibition and mandamus as prayed.
- Applicants to file the Notice of Motion within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
Jr Misc. Civil Application No. 12 Of 2012
IN THE MATTER OF
AN APPLICATION FOR JUDICIAL REVIEW FOR
ORDER OF MANDAMUS AND PROHIBITION
IN THE MATTER OF LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA
IN THE MATTER OF ARTICLE 159 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF KAMAINDI ADJUDICATION SECTION OF KAMAINDI LOCATION OF IGAMBA NG’OMBE DIVISION
IN THE MATTER OF KAMWIMBI B ADJUDICATION SECTION OF IGAMBA NG’OMBE DIVISION
IN THE MATTER OF DISTRICT LAND ADJUDICATION OFFICER MERU
SOUTH/MAARA DISTRICTS DELARATION NO. ADM/LA/4/118 DATED 4TH OCTOBER 2012
NJERU MAIRANI ........................................................................ 1ST APPLICANT
DAVID NJIRU MUTUA ............................................................. 2ND APPLICANT
DANIEL NYAGA ........................................................................ 3RD APPLICANT
(THE APPLICANTS REPRESENT 13 MBEERE CLANS IN IGAMBA NG’OMBE DIVISION)
VERSUS
THE ATTORNEY GENERAL ................................................. 1ST RESPONDENT
THE COMMISSIONER OF LANDS ...................................... 2ND RESPONDENT
DIRECTOR OF LAND ADJUDICATION ............................. 3RD RESPONDENT
CHIEF LAND REGISTRAR ................................................... 4TH RESPONDENT
DISTRICT LAND ADJUDICATION OFFICER
MERU SOUTH/MAARA DISTRICTS .................................. 5TH RESPONDENT
RULING
The applicants herein filed this Chamber Summons under certificate of urgency on 17th December 2012 seeking leave to apply for orders of prohibition and mandamus with regard to the respondents Declaration number ADM/LA/4/118 dated 4th October 2012 which declared Kamaindi of Kamaindi Location in Igambo Ngombe Division. The same is supported by a verifying affidavit and statutory statement.
I have considered the application. What comes out from the affidavit and statement is that in declaring the Kamaindi of Kamaindi Location, the 5th respondent called a meeting on 29th September 2012 of which only the members of the Tharaka Community were represented and yet Kamaindi Location is occupied by both the Tharaka and Mbeere Community. There was therefore a breach of the rules of natural justice. Mr. Kamunda has addressed me on the application during which I raised the issue that this matter ought to have been filed at the Environment and Land Court in Meru. He agrees but urges me to grant leave then I can transfer the suit to the Environment and Land Court in Meru.
Having considered the submissions by Mr. Kamunda and also having looked at the statutory statement and verifying affidavit, I am satisfied that the applicants have established sufficient grounds for the orders sought in the Chamber Summons dated 13th December 2012 and filed herein on 17th December 2012. I accordingly allow the application and hereby grant leave to the applicants to apply for orders of prohibition and mandamus as prayed. In accordance with Rule 3 (1) of Order 53 of the Civil Procedure Rules, I direct that the applicants shall file the Notice of Motion within 21 days from the date hereof. I further direct pursuant to Rule 3 (2) of the said ordersthat the applicants shall serve the Notice of Motion on the respondents and all such persons as are affected by it within 14 days of filing and thereafter file an affidavit stating who has been served. The leave granted herein shall operate as a stay of any intended decision, action, execution or enforcement of the Declaration number ADM/LA/4/118 of 4th October 2012.
Costs shall be in the cause.
It is further directed that this matter be and is hereby transferred to the Environment and Land Court Judge Hon. Njoroge in Meru High Court where it will be mentioned on 4th November 2013 for further orders.
B.N. OLAO
JUDGE
30TH SEPTEMBER, 2013
30/9/2012
Coram
B. N. Olao – Judge
CC – Muriithi
Mr. Kamunda for Applicant present
No appearance for Respondents
COURT: Ruling delivered this 30th day of September 2013 in open Court.
B.N. OLAO
JUDGE
30TH SEPTEMBER, 2013