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ELCDismissedJudicial Review No. 8 of 2017· [2018] KEELC 223 (KLR)

Republic v Senior Resident Magistrate Court, Bondo & 2 others; Khalid Okanda Owino (Interested Party) Ex Parte Orwa Owino [2018] KEELC 223 (KLR)

Environment and Land Court
5 December 2018
807 words in judgment
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The bottom line

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A Kenyan landowner lost his bid to overturn a tribunal decision because he chose judicial review instead of a second appeal, the wrong legal route.

What this practically means

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Executive summary

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Peter Orwa Owino, the Exparte Applicant, sought orders of certiorari to quash the proceedings and decision of the Bondo Land Disputes Tribunal in Tribunal Case No. 15 of 2004 dated 4th May 2006, by a Notice of Motion dated 12th March 2010 and amended on 23rd October 2017. Leave had been granted on 18th February 2010. The respondents, represented by the Attorney General, did not oppose the application, and the interested party (Khalid Okanda Owino, substituted for the deceased Sophia Okudo Owino) filed no replying papers and did not participate. The court framed two issues: whether the tribunal's award was in excess of its jurisdiction, and who should pay costs. The court found that the applicant himself had initiated the land claim before the Tribunal, which lacked jurisdiction over registered land under Section 3(1) of the Land Disputes Tribunal Act (Cap 303A) and Section 159 of the Registered Land Act (Cap 300), both repealed. The Provincial Land Appeal Committee, Nyanza Province, which dismissed his appeal, also lacked jurisdiction. The court held that judicial review was the wrong remedy: it deals with process rather than merit, the court cannot substitute its own decision, and quashing would confer no new rights. The proper remedy was a second appeal under Section 8 of the Land Disputes Act, directed at the Provincial Appeals Committee decision rather than the tribunal decision. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Land Disputes Tribunal had jurisdiction over the claim and whether its award was in excess of jurisdiction

Holding

The Tribunal and the Provincial Appeals Committee lacked jurisdiction to hear and determine a claim over registered land, but the applicant himself initiated the claim before them; the decision to be challenged was the appeals committee's, not the tribunal's

Reasoning

The Exparte Applicant had initiated the land claim before the Tribunal, which lacked jurisdiction under Section 3(1) of the Land Disputes Tribunal Act (Cap 303A) read with Section 159 of the Registered Land Act (Cap 300), both repealed. The Provincial Appeals Committee equally lacked jurisdiction over registered land. Both dismissed his claim. His remedy was a second appeal under Section 8 of the Land Disputes Act, not judicial review.

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02

Whether judicial review was the correct remedy for challenging the tribunal and appeals committee decisions

Holding

No - the wrong option. The proper avenue was a second appeal to the High Court under Section 8 of the Land Disputes Act, and judicial review could not substitute the court's own decision

Reasoning

The court held that judicial review deals only with the process rather than the merit of a decision. Even if the Provincial Appeals Committee decision were quashed, the court lacks jurisdiction to substitute its own decision in judicial review proceedings, and quashing would not confer any new legal rights on either party. The applicant should instead have pursued a second appeal.

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03

Who pays the costs

Holding

No orders as to costs despite the non-opposition by respondents and non-participation by the interested party

Reasoning

Although the Attorney General for the respondents did not oppose the motion and the interested party did not file replying papers or attend, the court found no merit in the application and dismissed it with no orders as to costs.

p. 2

Legal principles established

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  • The decision of a Land Disputes Tribunal appeals committee dismissing an appeal confers no rights over disputed land that did not exist before the tribunal decision
  • Quashing a Tribunal or Provincial Appeals Committee decision in judicial review does not confer legal rights that were not already in existence, as judicial review concerns process, not merit

Court orders

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  1. 1.Notice of Motion dated 12th March 2010 as amended on 23rd October 2017 dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Bondo Land Dispute Tribunal Act
  • Land Disputes Tribunal Act (Chapter 303A, Laws of Kenya)Section 3(1)
  • Land Disputes ActSection 8
  • Registered Land Act (Chapter 300, Laws of Kenya)Section 159
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under the Land Disputes Tribunals Act (Section 8) and order of leave granted on 18 February 2010

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, "Republic v Senior Resident Magistrate Court, Bondo & 2 others; Khalid Okanda Owino (Interested Party) Ex Parte Orwa Owino [2018] KEELC 223 (KLR)", Case Analysis (2018). Judicial Review No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/223/eng@2018-12-05

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