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ELCDismissedJudicial Review (Environment & Land Court) – chamber summons dated 6th January 2017 (number not stated in judgment)· [2017] KEELC 337 (KLR)

Jitesh Shah & 2 others v Deputy Registrar Environment & Land Court Nairobi & another [2017] KEELC 337 (KLR)

Environment and Land Court
9 November 2017
986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can review a Deputy Registrar's decisions and rejected every attempt to block the judicial review case.

What this practically means

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Executive summary

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The ex-parte applicants filed a chamber summons dated 6th January 2017 seeking leave to apply for judicial review orders against a decision of the Deputy Registrar of the Environment and Land Court concerning her administrative powers in taxation of bills. The matter was initially filed in the Judicial Review Division of the High Court and transferred suo motu by a judge of that Division to the Environment and Land Court as involving a land transaction. Before the leave application could be heard, the interested party raised a preliminary objection on five grounds: absence of leave under Order 53 Rule 1; wrongful joinder of the Attorney General; lack of jurisdiction in the filing court; inability of an Environment and Land Court judge to handle a matter initially filed in the High Court; and the proposition that judicial officers are not quasi-judicial bodies amenable to judicial review. The court disposed of the objection on written submissions and rejected all five grounds. It held that leave could not be a prerequisite to an application that is itself for leave; that the Attorney General is a necessary party in judicial review proceedings as the Government's representative; that the transfer had settled the jurisdictional question; and, following Justice Odunga's decision in Republic v Chief Magistrate Milimani ex-parte Violet Ndanu Mutinda, that the Deputy Registrar's decisions, being administrative and within the court's supervision, may be challenged through judicial review if made in excess of jurisdiction. The preliminary objection was dismissed with costs to the ex-parte applicants. The leave application itself remains to be heard.

Key legal issues

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01

Whether leave was required before this application

Holding

The ground fails because the application is itself for leave; leave cannot be a prerequisite to itself

Reasoning

The chamber summons sought leave to file the substantive judicial review motion. Since that application for leave is yet to be heard, the interested party's contention that no leave was obtained under Order 53 Rule 1 was premature and without merit.

p. 2
02

Whether the Attorney General was wrongly enjoined

Holding

The Attorney General is a necessary party in judicial review proceedings

Reasoning

Relying on authority that judicial review is a state mechanism to check excesses of state officers, the court held that the Attorney General, as representative of Government, must be enjoined in judicial review proceedings.

p. 2
03

Whether the application was filed in a court without jurisdiction

Holding

The jurisdictional objection was overtaken by the transfer of the matter from the High Court Judicial Review Division to the Environment and Land Court

Reasoning

The High Court judge, acting suo motu, transferred the file to the Environment and Land Court upon realising the litigation arose from a land transaction. Staff acted on the judge's orders, so no formal transfer application was needed, and the issue is settled.

p. 2
04

Whether judicial officers' decisions are amenable to judicial review

Holding

Yes - the Deputy Registrar's administrative decision on taxation may be challenged by judicial review if in excess of jurisdiction

Reasoning

Following Justice Odunga's decision in Republic v Chief Magistrate Milimani ex-parte Violet Ndanu Mutinda, where judicial review orders issued against a Chief Magistrate's decision, the court held that a Deputy Registrar, being under the court's supervision, may likewise be subjected to judicial review.

p. 3

Legal principles established

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  • A decision of a judicial officer acting administratively, such as a Deputy Registrar on taxation of bills, is amenable to judicial review if made in excess of jurisdiction
  • The Attorney General is a necessary party in judicial review proceedings
  • Once a matter is transferred to the Environment and Land Court by a judge of the High Court, the Environment and Land Court has jurisdiction to grant any relief including judicial review orders

Court orders

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  1. 1.The preliminary objection raised by the interested party is dismissed
  2. 2.Costs of the preliminary objection to the ex-parte applicants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1

Cases cited (3)

  • Evangelical Lutheran Church in Kenya Registered Trustees v Commissioner of Lands and others
    Nairobi High Court Miscellaneous Civil Application No. 555 of 2006
  • Evans Musungu (case quoted within Evangelical Lutheran Church in Kenya)
  • Republic v Chief Magistrate Milimani Commercial Courts & 2 Others Ex-parte Violet Ndanu Mutinda & 5 Others
    (2014) EKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over transferred judicial review application concerning a land transaction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jitesh Shah & 2 others v Deputy Registrar Environment & Land Court Nairobi & another [2017] KEELC 337 (KLR)", Case Analysis (2017). Judicial Review (Environment & Land Court) – chamber summons dated 6th January 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/337/eng@2017-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.