Philip Osok Awinyo v National Land Commission & another [2018] KEELC 199 (KLR)
The bottom line
#A Kisumu court ruled that a judicial review case isn't thrown out just because it wasn't filed in the name of the Republic, as old rules required.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review proceedings must be instituted in the name of the Republic under Section 8 of the Law Reform Act and Order 53 of the Civil Procedure Rules.
Failure to name the Republic does not render the application defective under the 2010 constitutional framework, since judicial review orders are now constitutional remedies and defects in form are curable irregularities.
The court held that pre-2010 authorities such as Farmers Bus Service reflected the position where prerogative orders existed only under statute. Under Articles 23(3)(f) and 47 of the Constitution, and legislation like the Environment and Land Court Act 2011 and the Fair Administrative Actions Act 2015, such orders are constitutional remedies that do not require the traditional form. Relying on the Court of Appeal in Republic vs Lutta Kasamani, defects in form or title are irregularities curable by amendment, and the substance and intent were clear from the body of the application.
Whether mandamus is unavailable to the Applicant because granting it would propagate an illegality.
That question is premature and can only be determined in the substantive motion.
The court found that whether the prerogative orders will be granted, and whether granting them would sanction an illegality, cannot be decided on a preliminary objection; such matters go to the merits and must await determination of the substantive notice of motion.
Whether the ground challenging the applicability of the Fair Administrative Actions Act 2015 survived.
The ground was abandoned as the 2nd Respondent offered no submissions on it.
The 2nd Respondent filed no submissions on ground 6 concerning the applicability of the Fair Administrative Actions Act, so the court treated that ground as abandoned.
Legal principles established
#- After the Constitution of Kenya 2010, judicial review orders are constitutional remedies under Article 23(3)(f), and failure to institute such proceedings in the name of the Republic is not fatal where the substance and intent are clear from the body of the application.
Court orders
#- 1.The 2nd Respondent's Preliminary Objection is dismissed.
- 2.Costs of the Preliminary Objection are in the cause.
- Jurisdiction invoked
- Section 8 of the Law Reform Act (Cap 26), Order 53 of the Civil Procedure Rules 2010, Sections 13(7)(b) of the Environment and Land Court Act No. 19 of 2011 and Articles 23(3)(f) and 47 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Osok Awinyo v National Land Commission & another [2018] KEELC 199 (KLR)", Case Analysis (2018). Judicial Review Notice of Motion dated 14th December 2017 (Chamber Summons dated 19th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/199/eng@2018-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.