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ELCStruck OutJudicial Review (Notice of Motion dated 6/11/2014), Environment and Land Court· [2018] KEELC 1063 (KLR)

Republic v District Lands and Adjudication & Settlment Officer Igembe/Tigania District & another Ex-parte Peter Mwangi & another [2018] KEELC 1063 (KLR)

Environment and Land Court
31 October 2018
MNMwangi Njoroge
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicants sought judicial review orders of prohibition against the Land Adjudication & Settlement Officer and an interested party, and a declaration that objection proceedings of September 2008 concerning Parcels Nos. 441, 1460 and 1461 Akaiga Adjudication Section were null and void. They asserted they bought the land in 1975, were registered as owners, but discovered in 1982 that the vendor had altered the records and in 1985 that they were falsely alleged dead; after a hearing their names were reinstated, but a later objection at Maua, informed by CID fingerprint findings favouring the interested party, resulted in the land being awarded to him. The interested party filed no response. The respondent argued prohibition was inappropriate because the underlying decision had not been quashed, that the applicants' evidence went to merits rather than the decision-making process, and that a civil suit was the proper avenue. The court identified the sole issue as whether the respondent acted within his statutory powers, but found the application so badly drafted that it failed to connect the respondent with any wrongdoing or identify the law breached; the verifying affidavit - which carries the proof of facts in judicial review - did not aid the applicants, and the history of the land was too sketchy to raise any case. Applying the principle that even undefended claims must be proved, the court struck out the entire Notice of Motion dated 6/11/2014 and made no orders as to costs.

Key legal issues

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01

Whether the judicial review application disclosed a case for determination

Holding

The application was so poorly drafted that it failed to link the respondent to any wrongdoing and raised no case; it was struck out

Reasoning

The court found the verifying affidavit failed to state what the land adjudication officer did to warrant review, the annexures were unexplained, and the facts of the land's ownership history were sketchy. The court works only with facts presented and cannot guess what the applicants intended. Accordingly the notice of motion was struck out with no orders as to costs.

p. 3
02

Whether prohibition was the appropriate remedy

Holding

The respondent argued prohibition would be ineffective since the underlying decision had not been quashed, and that the applicants' grievances went to merits, not the decision-making process

Reasoning

The respondent submitted that the initial order sought to be prohibited had not been quashed, so prohibition would cause chaos and was not efficacious; judicial review concerns the decision-making process, whereas the applicants' evidence related to the merits of their land claim, for which a civil suit is suited. The court did not need to decide this given the striking out.

p. 2

Legal principles established

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  • Even where a claim is undefended, the claimant must prove his claim to the required standard
  • In judicial review the verifying affidavit carries the proof of the facts alleged in the statement of facts
  • Pleadings must be clearly stated so the court need not guess a litigant's meaning

Court orders

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  1. 1.Strike out the entire Notice of Motion dated 6/11/2014
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Consolidation ActSection 26(1); Part 2; Sections 9 and 11

Cases cited (3)

  • Republic -vs- Chairman Tribunal Kirinyaga District & Another Ex parte Peter Maru
    (2015) eKLR
  • Commissioner General, Kenya Revenue Authority (Through Republic) vs. Silvano Onema Owaki T/A Marenga Filling Station
    C.A at Kisumu Civil Appeal No. 45 of 2000
  • Hon. Daniel Toroitich arap Moi -vs- Mwangi Stephen Muriithi
    NBI Civil Appeal No. 240 of 2011, eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (orders of prohibition and declaration of nullity) under the Land Consolidation Act framework invoked by the applicants

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 District Lands and Adjudication & Settlment Officer Igembe/Tigania District & another Ex-parte Peter Mwangi & another [2018] KEELC 1063 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 6/11/2014), Environment and Land Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1063/eng@2018-10-31

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