[1998] KEHC 2 (KLR)
The court held that while local communities may have customary rights of access to the sea, such rights are subject to extinguishment upon lawful allocation of land to private developers unless specifically preserved. The court found that the requirement to serve notice to the Registrar under Order 53 is mandatory,...
Source-derived case information.
- Citation
- [1998] KEHC 2 (KLR)
- Parties
- Applicant: __MISSING__; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 384 of 1996
- Procedural Posture
- Judicial Review / Application for Leave
- Outcome
- application dismissed
- Legal Topics
- Indigenous Land Rights, Access to Sea, Judicial Review Procedure, Certiorari, Leave to Commence Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
__MISSING__
Applicant
__MISSING__
Respondent
Procedural Posture
Judicial Review / Application for Leave
Legal Issues
- 1 Whether the local community retains rights of access to the sea after land has been set apart and allocated to a private developer.
- 2 Whether notice to the Registrar given six months after filing a judicial review application is a nullity under Order 53 of the Civil Procedure Rules.
- 3 What is the purpose of the leave stage in judicial review and what matters should the court consider before granting leave.
Ratio Decidendi
The court held that while local communities may have customary rights of access to the sea, such rights are subject to extinguishment upon lawful allocation of land to private developers unless specifically preserved. The court found that the requirement to serve notice to the Registrar under Order 53 is mandatory, and failure to comply within the prescribed time frame renders the application a nullity. The leave stage in judicial review serves as a filter to prevent abuse of process, and the court must be satisfied that the application raises a prima facie case. The court further held that certiorari may only issue against bodies exercising judicial or quasi-judicial functions, and must...
Court Disposition
application dismissed
Orders
- The application for leave to commence judicial review is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
4 paragraphs
Land – land use by indigenous inhabitants – rights of access to the sea by local community – where the land has been set apart and allocated to a private developer – procedure by which the community can enforce their rights - matters the court will consider.
Judicial Review – notice to the Registrar – where the Registrar is given notice six months after filing the application – whether such notice is a nullity – Civil Procedure Rules order 53
Judicial Review – application for leave – purpose of the leave stage – matters a court will consider before leave to commence action may be granted – exercise of the court’s discretion
Judicial Review – certiorari - whether an order of certiorari may be granted six months after the date of the proceedings being challenged - persons or bodies against whom an application for certiorari may lie – whether the Commissioner of Lands is a person against whose actions an order of certiorari may lie - Civil Procedure Rules order 53 rule 2.