Charo Thali Ngala v Republic & 4 others [2018] KECA 526 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review cases, like any lawsuit, can be dismissed if a party sits on them for years without acting.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge had the jurisdiction to hear the notice to show cause, given that judicial review proceedings are governed by the Law Reform Act and Order 53 and that the trial Judge was an Environment and Land Court Judge
- 2.If so, whether the trial Judge erred in dismissing the judicial review proceedings for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules
Key legal issues
#Whether Order 17 rule 2 of the Civil Procedure Rules applies to judicial review proceedings
Yes. Although judicial review proceedings are substantively governed by the Law Reform Act, the Fair Administrative Action Act and procedurally by Order 53, no law ousts the operation of procedural rules in judicial review applications, and Order 17 rule 2 may therefore be invoked as a procedural vehicle for dismissing a judicial review matter for want of prosecution.
The court distinguished Commissioner of Lands v Kunste Hotel and Republic v Attorney General ex parte Kenya Airline Pilots Associations, in which the scope of judicial review jurisdiction was considered against substantive law (the Government Proceedings Act, section 13, requiring notice before suing governmental entities). Here the contention concerned procedural rules, not substantive law, and no law was cited excluding the operation of procedural rules in judicial review applications.
Whether an Environment and Land Court Judge has jurisdiction to hear and determine judicial review proceedings
Yes, where the germane issue is one touching on the environment or the use, occupation of, or title to land, since Article 162(2) establishes courts with the status of the High Court for such disputes.
The principal dispute in the judicial review application was over ownership of a parcel of land, which falls squarely within the jurisdiction of the Environment and Land Court. The form of the proceedings (judicial review or otherwise) does not oust the ELC's jurisdiction where the underlying dispute is a land dispute.
Whether the trial Judge erred in dismissing the suit for want of prosecution
No. The explanations tendered (court file disappearance, death of a party, delayed response from the District Adjudication Officer) all arose prior to 2012 and did not explain the stagnation from 16th October 2012 to 27th February 2017; the Judge properly exercised his discretion.
The appellant's explanations for non-prosecution related to events before 2012, yet the suit stagnated for about five years thereafter without justification. The contention that the notice to show cause was not served was not raised at trial and could not be entertained on appeal. The court therefore found no basis to interfere with the exercise of discretion by the trial Judge.
Legal principles established
#- Judicial review proceedings, though governed substantively by the Law Reform Act (and the Fair Administrative Action Act) and procedurally by Order 53, are not immune from the operation of procedural rules; Order 17 rule 2 may be applied to dismiss them for want of prosecution.
- An Environment and Land Court Judge has jurisdiction to determine judicial review proceedings so long as the germane issue for determination touches on the environment or the use, occupation of, or title to land.
- A court must establish its own jurisdiction before embarking on the determination of any matter.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 5th respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Judicial Review Application No. 5 of 2000
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Article 162(2) and Article 164 of the Constitution of Kenya 2010); appeal against dismissal for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
Relief refused
#Setting aside the dismissal of Judicial Review Application No. 5 of 2000 for want of prosecution
The appellant failed to give justifiable reasons for the indolence in prosecuting the suit; explanations addressed only delays prior to 2012, not the five-year stagnation thereafter; and no law precluded application of Order 17 rule 2 to judicial review proceedings
Costs
Costs of the appeal awarded to the 5th respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is incumbent upon any court intending to render an opinion or determine a matter to first ascertain the entry point to the doors of justice, and that is jurisdiction.
No law ousts the operation of procedural rules in judicial review application, nor has any been cited.
as long as the germane issue that stood out for determination was an issue touching on environment, the use and occupation of, the title to land, all those proceedings be they by judicial review or otherwise can be determined by the ELC
Consequently, we find no merit in this appeal which is hereby dismissed with costs to the 5th respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo Thali Ngala v Republic & 4 others [2018] KECA 526 (KLR)", Case Analysis (2018). Civil Appeal No. 48 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/526/eng@2018-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.