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ELCDismissedELC JR Case No. 1 of 2018· [2018] KEELC 1794 (KLR)

Charles N. Embodolio v Republic of Kenya & 3 others [2018] KEELC 1794 (KLR)

Environment and Land Court
25 September 2018
2,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Charles N. Embodolio moved the Environment and Land Court at Kakamega by a Notice of Motion dated 8th June 2018 seeking judicial review orders: certiorari to remove and quash an alleged decision of the Senior Chief of Lumakanda made concerning the boundary between parcels KAKAMEGA/LUMAKANDA/1647 and KAKAMEGA/LUMAKANDA/809; prohibition against the Senior Chief from interfering with the boundary on the ground that he lacked jurisdiction to fix boundaries; and mandamus compelling the County Land Registrar Kakamega County to fix the boundary. The 2nd interested party, a grandson of the registered owner of parcel 1647 (the late Charles Ayugu Matoni), opposed the application, contending that the applicant had encroached on the parcel, admitted encroachment before the Deputy County Commissioner, and later reinstated the boundary by planting sisal, and that the dispute belonged at the land registry. The court reviewed the principles governing judicial review, noting that a applicant must demonstrate illegality, irrationality or procedural impropriety, that review addresses the decision-making process rather than merits, and that the remedy is discretionary. The court found no evidence of the Senior Chief's decision on the record, holding that photographs of the boundary were insufficient. It held that this was a boundary dispute properly resolved at the land registry under the Land Act, that judicial review should not be trivialised, and that where further facts are needed the applicant should revert to a civil claim. The application was dismissed with costs.

Key legal issues

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01

Whether the alleged Senior Chief decision could be quashed by certiorari

Holding

No - the court found no evidence of the decision complained of; photographs of the boundary were insufficient

Reasoning

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.

p. 3
02

Whether judicial review was the proper remedy for a boundary dispute

Holding

No - the dispute should be resolved at the land registry under the Land Act; the application was an abuse of process

Reasoning

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.

p. 3
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The discretionary nature of judicial review remedies

Holding

Judicial review orders are discretionary prerogative remedies not guaranteed even where the case falls within their categories

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The judicial review application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Law Reform ActCap 26, Part VI
  • Land Act

Cases cited (7)

  • Republic v Kenya Revenue Authority & Another Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Republic vs Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • Republic vs. Judicial Service Commission of Kenya Ex Parte Stephen S. Pareno
    Nairobi HCMA No. 1025 of 2003 (2004) 1 KLR 203
  • Welamondi vs The Chairman, Electrol Commission of Kenya
    (2002) 1 KLR
  • Republic v Chairperson Business Premises Rent Tribunal & another Ex-parte Keiyo Housing Cooperative Society Ltd & another
    [2014] eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Civil Application No. 307/2003
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

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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, "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.