[2024] KEELC 3371 (KLR)
The court found that the decision sought to be challenged was made by the Deputy County Commissioner Suba Sub-County while exercising delegated authority from the Minister (now Cabinet Secretary) under Section 29 of the Land Adjudication Act. As such, the proper party to be sued in judicial review proceedings is the...
Source-derived case information.
- Citation
- [2024] KEELC 3371 (KLR)
- Parties
- Applicant: The State; Respondent: Deputy County Commissioner Suba Sub-County; Respondent: Hon. Attorney General; Applicant: Dismas Okello William Rowa; Interested Party: Silas Ouko Ngorome; Interested Party: Headmonds James K’obil; Interested Party: Edwin Ochieng Agik; Interested Party: Kennedy Anthony
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Case E003 of 2024
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Commence Judicial Review
- Outcome
- application dismissed
- Judges
- M Sila
- Legal Topics
- Judicial Review, Ministerial Decision, Delegated Authority, Land Adjudication, Certiorari, Procedural Requirements
- 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
Hon. Attorney General
Respondent
Dismas Okello William Rowa
Applicant
Silas Ouko Ngorome
Interested Party
Headmonds James K’obil
Interested Party
Edwin Ochieng Agik
Interested Party
Kennedy Anthony
Interested Party
Procedural Posture
Judicial Review Application / Ruling on 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 Suba Sub-County.
- 2 Whether the Minister (Cabinet Secretary) must be joined as a substantive party in judicial review proceedings challenging a decision made under delegated authority pursuant to Section 29 of the Land Adjudication Act.
Ratio Decidendi
The court found that the decision sought to be challenged was made by the Deputy County Commissioner Suba Sub-County while exercising delegated authority from the Minister (now Cabinet Secretary) under Section 29 of the Land Adjudication Act. As such, the proper party to be sued in judicial review proceedings is the Minister, not merely the delegate. Since the Minister was not joined as a substantive party, the application for leave was fatally defective and could not be granted. The court therefore dismissed the application for leave to commence judicial review proceedings, but granted liberty to the applicants to file a proper application with the correct parties.
Court Disposition
application dismissed
Orders
- The application for leave to commence judicial review proceedings is dismissed.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
State v Deputy County Commissioner Suba Sub-County & another; Rowa (Exparte); Ngorome & 3 others (Interested Parties) (Environment and Land Judicial Review Case E003 of 2024) [2024] KEELC 3371 (KLR) (24 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3371 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Judicial Review Case E003 of 2024
M Sila, J
April 24, 2024
Between
The State
Applicant
and
The Deputy County Commissioner Suba Sub-County
1st Respondent
The Hon. Attorney General
2nd Respondent
and
Dismas Okello William Rowa
Exparte
and
Silas Ouko Ngorome
Interested Party
Headmonds James K’obil
Interested Party
Edwin Ochieng Agik
Interested Party
Kennedy Anthony
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 said to have been made on 3 November 2023 (though it appears to me to be a decision made on 19 December 2023) awarding the land parcels Kaksingri West B/1291, 1292, 1293 and 1294 to the interested parties in Adjudication Appeal Case no 521 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. The main motion, without the Minister being a party, will be a non-starter.
3. 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.
4. The ex parte applicants are at liberty to file a proper application for consideration.
DATED AND DELIVERED THIS 24 DAY OF APRIL 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTHOMA BAY