[2024] KEELC 3740 (KLR)
The court held that the application for leave to commence judicial review was fatally defective because it failed to join the Minister (now Cabinet Secretary), who is the proper party in law when a decision is made under delegated authority pursuant to Section 29 of the Land Adjudication Act. The Deputy County...
Source-derived case information.
- Citation
- [2024] KEELC 3740 (KLR)
- Parties
- Applicant: The State; Respondent: Deputy County Commissioner Suba Sub-County; Respondent: Attorney General; Applicant: Samwel L Otieno; Applicant: Timson O Otieno; Applicant: Erastus O Otieno; Applicant: Michael Onyango Otieno; Interested Party: Wycliffe O Ojwang; Interested Party: Headmonds James K’obil; Interested Party: Charles O Ojwang; Interested Party: Joseph Okoth Ojwang; Interested Party: Michael Otieno Ojwang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Case E004 of 2024
- Procedural Posture
- Judicial Review Application / Ruling on Application for Leave to Commence Judicial Review
- Outcome
- application dismissed
- Judges
- M Sila
- Legal Topics
- Judicial Review, Delegated Authority, Ministerial Decision, Land Adjudication, Certiorari, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Applicant
Deputy County Commissioner Suba Sub-County
Respondent
Attorney General
Respondent
Samwel L Otieno
Applicant
Timson O Otieno
Applicant
Erastus O Otieno
Applicant
Michael Onyango Otieno
Applicant
Wycliffe O Ojwang
Interested Party
Headmonds James K’obil
Interested Party
Charles O Ojwang
Interested Party
Joseph Okoth Ojwang
Interested Party
Michael Otieno Ojwang
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Application for Leave to Commence Judicial Review
Legal Issues
- 1 Whether leave should be granted to commence judicial review proceedings against the respondents for a decision made under delegated authority by the Deputy County Commissioner.
- 2 Whether the proper party (the Minister/Cabinet Secretary) has been joined to the proceedings as required by law.
- 3 Whether the application as drawn is competent in the absence of the Minister as a party.
Ratio Decidendi
The court held that the application for leave to commence judicial review was fatally defective because it failed to join the Minister (now Cabinet Secretary), who is the proper party in law when a decision is made under delegated authority pursuant to Section 29 of the Land Adjudication Act. The Deputy County Commissioner was acting not in his own right but as a delegate of the Minister, and therefore the Minister must be a substantive party to any challenge of such a decision. Without the Minister as a party, the main motion would be a non-starter and could not proceed. Consequently, the court declined to grant leave and dismissed the application, but allowed the applicants liberty to...
Court Disposition
application dismissed
Orders
- Leave to commence judicial review is declined.
- The application dated 16 April 2023 is dismissed.
Full Case Text
Judgment text and source record
42 paragraphs
State v Deputy County Commissioner Suba Sub-County & another; Otieno & 3 others (Exparte); Ojwang & 4 others (Interested Parties) (Environment and Land Judicial Review Case E004 of 2024) [2024] KEELC 3740 (KLR) (24 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3740 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Judicial Review Case E004 of 2024
M Sila, J
April 24, 2024
Between
The State
Applicant
and
Deputy County Commissioner Suba Sub-County
1st Respondent
Attorney General
2nd Respondent
and
Samwel L Otieno
Exparte
Timson O Otieno
Exparte
Erastus O Otieno
Exparte
Michael Onyango Otieno
Exparte
and
Wycliffe O Ojwang
Interested Party
Headmonds James K’obil
Interested Party
Charles O Ojwang
Interested Party
Joseph Okoth Ojwang
Interested Party
Michael Otieno Ojwang
Interested Party
Ruling
1. I have before me an application dated 16 April 2023. It is an application brought pursuant to Order 53 of the Civil Procedure Rules and it seeks leave to commence judicial review proceedings against the respondents. The ex parte applicants intend to file suit for orders of certiorari to quash a decision made by the 1st respondent which was made on 3 November 2023 awarding the land parcels Kaksingri West B/1335 and 1336 to the interested parties in Adjudication Appeal Case No. 514 of 2017, Kaksingri West B, Adjudication Section. That award was made in respect of an appeal to the Minister pursuant to Section 29 of the Land Adjudication Act, Cap 284, Laws of Kenya. It is apparent therefore that the 1st respondent was exercising a delegated authority.
2. I am afraid that as drawn I am unable to grant the leave sought. This is because the decision was strictly not of the Deputy County Commissioner Suba, in that capacity, but was, in the context of the matter, a decision of the Minister, since the Deputy County Commissioner Suba was only exercising a delegated authority. The Minister (now Cabinet Secretary) must therefore be a substantive party to the litigation but he/she is not included in the litigation.
3. The main motion, without the Minister being a party, will be a non-starter.
4. For the above reasons, I decline to grant the leave sought. The application is therefore dismissed but there will be no orders as to costs.
5. The ex parte applicants are at liberty to file a proper application for consideration.
DATED AND DELIVERED THIS 24 DAY OF APRIL 2024. JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTHOMA BAY