Charles N. Embodolio v Republic of Kenya & 3 others [2018] KEELC 1794 (KLR)
The bottom line
#The court dismissed a landowner's attempt to use judicial review to settle a boundary dispute, directing him to the land registry instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged Senior Chief decision could be quashed by certiorari
No - the court found no evidence of the decision complained of; photographs of the boundary were insufficient
The applicant sought certiorari over an alleged boundary decision by the Senior Chief of Lumakanda. On perusal of the record, the court found no decision capable of being quashed and considered photographs of the boundary inadequate. Certiorari requires a decision or act tainted with illegality, irrationality or procedural impropriety, none of which was demonstrated on the materials before the court.
Whether judicial review was the proper remedy for a boundary dispute
No - the dispute should be resolved at the land registry under the Land Act; the application was an abuse of process
The court held that judicial review should be confined to proper matters and not trivialised. Since the Land Act and the land registry provide a statutory mechanism for boundary determination, the applicant should have pursued that avenue. Judicial review suits clear cases where facts can be ascertained; where further facts are needed, the applicant should file a civil claim. The application was therefore misplaced and an abuse of process.
The discretionary nature of judicial review remedies
Judicial review orders are discretionary prerogative remedies not guaranteed even where the case falls within their categories
Relying on authority, the court reiterated that whether to grant judicial review orders is an exercise of judicial discretion. The court must weigh circumstances to see whether the remedy is efficacious; even where a case falls within the categories for judicial review, the court is not bound to grant it, and the orders depend on the circumstances of each case.
Legal principles established
#- A judicial review applicant must show the impugned decision is tainted with illegality, irrationality or procedural impropriety
- Judicial review concerns the decision-making process, not the merits of the decision
- Judicial review is a discretionary remedy not guaranteed even where the case falls within its categories
- Judicial review should not be trivialised; where ordinary law provides relief, that relief must be pursued, and a party needing further facts should revert to a civil claim
Court orders
#- 1.The judicial review application is dismissed with costs
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (2010) and the Law Reform Act, Cap 26 (Part VI)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles N. Embodolio v Republic of Kenya & 3 others [2018] KEELC 1794 (KLR)", Case Analysis (2018). ELC JR Case No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1794/eng@2018-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.