[2021] KEELC 4285 (KLR)
The court found that the applicant and all other parties were duly notified of the date of the ruling and the subsequent directions issued on 1st July, 2020. There was no evidence that the applicant's right to a fair hearing was violated, as notice was given and the directions were within the court's discretion to...
Source-derived case information.
- Citation
- [2021] KEELC 4285 (KLR)
- Parties
- Applicant: Oloololo Game Ranch Ltd; Respondent: The National Land Commission; Respondent: Ikarekeshe Group Trust; Respondent: The Attorney General of Kenya; Respondent: The Chief Land Registrar; Respondent: The Ministry of Lands; Respondent: The Director of Land Adjudication and Settlement
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 05 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Stay and Recusal
- Outcome
- application dismissed
- Judges
- MN Kullow
- Legal Topics
- Fair Hearing Rights, Land Title Cancellation, Judicial Recusal, Administrative Action, Affidavit Evidence, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oloololo Game Ranch Ltd
Applicant
The National Land Commission
Respondent
Ikarekeshe Group Trust
Respondent
The Attorney General of Kenya
Respondent
The Chief Land Registrar
Respondent
The Ministry of Lands
Respondent
The Director of Land Adjudication and Settlement
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Stay and Recusal
Legal Issues
- 1 Whether the applicant's right to a fair hearing under Article 50 of the Constitution was violated by the court's directions issued without notice to all parties.
- 2 Whether the proceedings should be stayed and the matter placed before another court for determination.
- 3 Whether the matter requires oral testimony or can be disposed of by affidavit evidence.
Ratio Decidendi
The court found that the applicant and all other parties were duly notified of the date of the ruling and the subsequent directions issued on 1st July, 2020. There was no evidence that the applicant's right to a fair hearing was violated, as notice was given and the directions were within the court's discretion to manage proceedings. The court further held that the substantive petition, which challenges the National Land Commission's notice to cancel the applicant's title, could be effectively disposed of by affidavit evidence, especially considering the COVID-19 pandemic and the practice directions in force. The application for stay and recusal lacked merit as the applicant failed to...
Court Disposition
application dismissed
Orders
- The notice of motion dated 22nd July, 2020 is dismissed.
- All parties are to comply with the directions issued by the court on 1st July, 2020.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
CONSTITUTIONAL PETITION NO. __05_OF 2019
IN THE MATTER OF ARTICLES 10, 20, 21 (1), 40 (1), 40 (3), 40 (4), 47, 50, 60, 64, 67, 232 (1), 232 (2), OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
-AND-
IN THE MATTER OF SECTION 14 AND 15 (2) (d) & (3) (e) OF THE NATIONAL LAND COMMISSION ACT, 2012
-AND-
IN THE MATTER OF SECTIONS 27 (a) AND 28 (a) OF THE REGISTERED LAND ACT
-AND-
IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
BETWEEN
OLOOLOLO GAME RANCH LTD.........................PETITIONER
-VERSUS-
THE NATIONAL LAND COMMISSION......1ST RESPONDENT
IKAREKESHE GROUP TRUST.....................2ND RESPONDENT
THE ATTORNEY GENERAL OF KENYA...3RD RESPONDENT
-AND-
THE CHIEF LAND REGISTRAR.......1ST INTERESTED PARTY
THE MINISTRY OF LANDS................2ND INTERESTED PARTY
THE DIRECTOR OF LAND ADJUDICATION AND
SETTLEMENT.......................................3RD INTERESTED PARTY
RULING
The Applicant had by a Notice of Motion dated 22nd July, 2020 sought for the following orders: -
1. Spent
2. Spent
3. That there be an order of stay of proceedings including writing and/or delivery of any rulings or judgement in relation to the subject petition pending the hearing and determination of the application.
That this matter be placed before any other court of competent jurisdiction, for its just and conclusive determination.
The Application is based on the grounds that the court had on 1st July, 2020 delivered a ruling in respect of the petitioner’s application without notice and directions were given without their output and the readiness of the parties not ascertained which in essence meant that the petitioners right to a fair hearing was flouted as enshrined under Article 50 of the constitution of Kenya 2010.
The application was supported by the affidavit of one Francis Leshilla Ole Ramet in which he deponed that the court had directed the parties to file and serve submissions without notice to all the parties in the matter and consequently seeks to set aside and vary the said orders.
The application was opposed by the respondents by way of a replying affidavit sworn by one Kuya Kijabe who deponed that contrary to the allegations by the applicant that they were not aware of the ruling delivered on 1/7/2020 the applicants and all other parties were informed about the date of the ruling on 30/6/2020 and the allegation that the ruling was delivered.
From the record it is quite clear that on 30th June, 2020 when the ruling was due to be delivered and adjourned to the following day the parties had notice of the said ruling and consequently upon the delivery of the same on 1st July, 2020 I gave directions on the manner in which the substantive petition had to be disposed.
The substantive petition from the pleadings is based on challenging the decision of the 1st Respondent’s Notice to cancel its title and even though the interested party avers to the fact that there will be various documents that they will introduce that will require oral testimony of witness I find that this is a matter that can easily be disposed off by way of affidavit evidence more so which during the current covid pandemic is tandem with the practice directions that were issued by the Honourable Chief Justice and in the circumstances I find that the notice of motion dated 22nd July, 2020 lacks merit and I dismiss the same and order that all parties do comply with the directions issued by the court on 1st July, 2020.
Orders accordingly.
DATED, SIGNED and DELIVERED in open court atNAROKon this2ndday ofFebruary, 2021.
Mohammed N. Kullow
Judge
2/2/2021
In the presence of: -
CA:Chuma
Mr Kibet for the 2nd Respondent
Mr Kere holding brief for Kemboy for the petitioners
Mohammed N. Kullow
Judge
2/2/2021