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ELCPartially AllowedJudicial Review No. 2 of 2013· [2017] KEELC 485 (KLR)

Evans Kaleka Sogomi v District Land Registrar & 6 others [2017] KEELC 485 (KLR)

High Court of Kenya
18 December 2017
1,545 words in judgment
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The bottom line

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Kenya's High Court confirmed it can grant stay of execution in judicial review cases using its inherent powers, even though civil procedure rules don't apply.

What this practically means

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Executive summary

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This is a ruling of the High Court at Eldoret (A. Ombwayo J) in Judicial Review No. 2 of 2013, in which the court had earlier quashed entries 4 and 5 in the register for Eldoret Municipality Block 21 (Kigongo)/3734, quashed the Land Registrar's cancellation of the ex-parte applicant's registration, and ordered reinstatement by mandamus. On 26.5.2016 the court extended the interested party's time to appeal, deemed the Notice of Appeal filed, and granted stay of execution for 100 days. The interested party now sought a further stay, claiming the registry had failed to avail proceedings and judgment needed to compile the record of appeal. The respondent countered that the proceedings were ready and certified by 4.10.2016, that the applicant was guilty of inordinate delay of about 22 months, and sought security of Kshs.4,000,000. The court first considered jurisdiction: judicial review is a special proceeding, neither civil nor criminal, so sections 1A, 1B, 3, 3A, 63(c) and 95 of the Civil Procedure Act and Order 42 Rule 6-7 and Order 50 Rule 1 of the Civil Procedure Rules do not apply, applying Commissioner of Lands v Kunste Hotel Ltd. Nevertheless, invoking the inherent power recognised in Nakumatt Holdings Ltd v Commissioner of VAT, the court held it could do justice where the law is silent. Finding the applicant was never availed the certified proceedings, it held the delay satisfactorily explained, declined to apply substantial-loss or security considerations, and granted a further stay of execution of 90 days pending filing and service of a record of appeal.

Key legal issues

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01

Jurisdiction to grant stay of execution pending appeal in judicial review matters

Holding

Order 42 Rule 6 and the cited provisions of the Civil Procedure Act do not apply to judicial review; stay can nonetheless be granted under the court's inherent power to do justice.

Reasoning

The court held judicial review proceedings are special, neither criminal nor civil, so sections 1A, 1B, 3, 3A, 63(c) and 95 of the Civil Procedure Act and Orders 42 Rule 6-7 and 50 Rule 1 do not apply, citing Commissioner of Lands v Kunste Hotel Ltd. However, following Nakumatt Holdings Ltd v Commissioner of VAT, the superior court has residual and inherent jurisdiction to correct mistakes and do justice where the law is silent. Having found the applicant unjustly deprived of proceedings needed to file an appeal, the court exercised that inherent power.

p. 3
02

Whether the applicant's delay was excusable

Holding

Though there was inordinate delay, it was satisfactorily explained because the applicant never received the typed and certified proceedings.

Reasoning

The respondent asserted the proceedings were ready and certified as at 4.10.2016 and that the applicant was guilty of inordinate delay. On perusal of the record the court found the proceedings were ready on 4.10.2016 but were never forwarded to the applicant, while counsel for the respondent obtained a copy without applying for or paying for it. Since the applicant had requested and paid for the proceedings promptly and been denied them, the delay was explained satisfactorily.

p. 3

Legal principles established

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  • Judicial review proceedings are special proceedings, neither criminal nor civil, to which the Civil Procedure Act and Civil Procedure Rules do not apply.
  • The High Court possesses inherent jurisdiction, not created by any law, to correct mistakes and do justice where the law is silent.

Court orders

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  1. 1.A further stay of execution of the decree of 90 days pending the filing and serving of a record of appeal

Authorities

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Legislation

  • Law Reform Act, Cap. 26, Laws of Kenyasections 8 and 9
  • Civil Procedure Act, Cap. 21, Laws of Kenyasections 1A, 1B, 3, 3A, 63(c) and 95
  • Civil Procedure Rules, 2010Order 42 Rule 6; Order 42 Rules 6-7; Order 50 Rule 1

Cases cited (2)

  • Commissioner of Lands Vs Kunste Hotel Ltd
    [E&L] 249
  • Nakumatt Holdings Ltd Vs Commissioner of Value Added Tax
    (2011 eKLR)
Jurisdiction invoked
Inherent power of the High Court to do justice; the court held Order 42 Rule 6 CPR and sections 1A, 1B, 3, 3A, 63(c) and 95 of the Civil Procedure Act do not apply to judicial review

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, "Evans Kaleka Sogomi v District Land Registrar & 6 others [2017] KEELC 485 (KLR)", Case Analysis (2017). Judicial Review No. 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/485/eng@2017-12-18

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