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ELCDismissedE.L.C. Misc Case No. 29 of 2015 (Formerly Misc Application 160 of 2014)· [2018] KEELC 2282 (KLR)

Republic v Chairman Embu Land Disputes Tribunal & 2 others Ex-Parte Jerevasio Ireri Patrick [2018] KEELC 2282 (KLR)

Environment and Land Court of Kenya
19 July 2018
2,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Embu dismissed a late attempt to overturn a Land Disputes Tribunal award, confirming you have only six months to seek judicial review in Kenya.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (Y.M. Angima, J) dismissed a judicial review application in which the ex-parte Applicant, Jerevasio Ireri Patrick, sought an order of certiorari to quash the award of the Embu Land Disputes Tribunal in Tribunal Case No. 22 of 2008, an award that had been adopted as a judgment of the Chief Magistrate's Court in Embu CMCC Award No. 9 of 2010 with a decree extracted in 2012. The Applicant complained that the award was adopted while an appeal was pending, that his father (the original Tribunal respondent) was deceased at delivery of the award, that he was joined as an interested party against his will, and that the Tribunal exceeded its jurisdiction by directing boundary relocation over 30 years after registration. The court framed four issues: limitation, whether the award could be quashed separately from the decree, whether a case for certiorari was made out, and costs. It held the application time-barred, leave having been sought about five years after the award, contrary to Order 53 Rule 2 and the Law Reform Act. It further held that the award, having been perfected into a judgment and decree, could not be quashed separately, and quashing it while the decree stood would be futile. On the merits, none of the grounds were established: the dispute was a boundary dispute not caught by the Limitation of Actions Act, and the Applicant's joinder was proper. The court confined itself to the grounds in the original statutory statement, disregarding grounds filed without leave. The notice of motion dated 7th October 2014 was dismissed with costs to the Respondents.

Key legal issues

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01

Limitation for judicial review

Holding

The application for judicial review was time-barred, having been filed about five years after the Tribunal's award, far outside the six-month period prescribed by Order 53 Rule 2 and sections 8 and 9 of the Law Reform Act.

Reasoning

Order 53 Rule 2 requires certiorari applications to be made within six months of the judgment, order, decree or proceedings sought to be quashed. The award was made on 8th December 2009, adopted as judgment in 2012 with a decree issued, yet leave was sought on 9th September 2014. The court cited Ako v Special District Commissioner Kisumu holding the six-month limitation statutory and absolute, incapable of liberalization through civil procedure enlargement provisions.

p. 2
02

Quashing an award already adopted as a decree

Holding

The Tribunal's award had been converted into a judgment and decree of the Magistrate's Court and lost separate existence; quashing the award alone while the decree stands would be futile.

Reasoning

The award was adopted as judgment in Embu CMCC Award No. 9 of 2010 and a decree extracted in 2012. Following the Attorney General's citation of Masagu Ole Koiotalel Naumo and the Court of Appeal's decision in Florence Nyaboke Machani, the court held the award had been perfected into a decree for enforcement and could not be surgically separated; quashing it while the decree remained unchallenged would serve no purpose.

p. 3
03

Merits of the certiorari application

Holding

None of the grounds for judicial review were established: the father participated in the Tribunal proceedings; the appeal was withdrawn before adoption of the award; the boundary claim was not statute-barred; and joinder of the Applicant before the Magistrate's Court was proper and necessary.

Reasoning

The record showed the Applicant's father actively participated in the Tribunal proceedings and the appeal was withdrawn in 2011, before adoption in 2012. The dispute was a boundary dispute, not a claim for recovery of land, so the Limitation of Actions Act did not bar the Tribunal; the Registrar was empowered to determine boundaries regardless of limitation. The joinder of the Applicant as adjoining owner was the Magistrate's Court's duty, consent not being required.

p. 3
04

New grounds introduced without leave

Holding

The court confined itself to the grounds in the original statutory statement, disregarding grounds sneaked in with the substantive notice of motion without leave to amend.

Reasoning

Under Order 53 Rule 4 of the Civil Procedure Rules, no grounds or relief may be relied upon in a judicial review application except those set out in the statutory statement, subject to the court's power to grant leave to amend. The Applicant filed a new statutory statement and supporting affidavit with the substantive motion without such leave, introducing two new grounds which the court declined to consider.

p. 2

Legal principles established

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  • An application for an order of certiorari must be made within six months, and the limitation is statutory and absolute and cannot be liberalized.
  • A Tribunal award that has been adopted as a judgment and perfected into a decree cannot be quashed separately from the resultant decree.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.
  • The resolution of a boundary dispute between neighbours is not a claim for recovery of land subject to the 12-year limitation period under the Limitation of Actions Act.
  • In judicial review, no grounds or relief may be relied upon except those set out in the statutory statement, absent leave to amend.

Court orders

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  1. 1.The Applicant's notice of motion dated 7th October 2014 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Civil Procedure RulesOrder 53 Rule 2
  • Civil Procedure RulesOrder 53 Rule 4
  • Law Reform Act (Cap 26)Sections 8 and 9
  • Land Disputes Tribunal Act, 1990 (now repealed)
  • Limitation of Actions Act (Cap 22)
  • Registered Land Act (now repealed)
  • Civil Procedure Act (Cap 21)Section 27

Cases cited (5)

  • Ako Vs Special District Commissioner Kisumu & Another
    [1989] KLR 163
  • Masagu Ole Koiotalel Naumo Vs Principal Magistrate Kajiado Law Courts & Another
    [2014] eKLR
  • Florence Nyaboke Machani Vs Mogere Amosi Ombui & Others
    [2014] eKLR
  • Municipal Council of Mombasa Vs Republic & Another
    [2002] eKLR
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Law Reform Act (Cap 26)

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 Chairman Embu Land Disputes Tribunal & 2 others Ex-Parte Jerevasio Ireri Patrick [2018] KEELC 2282 (KLR)", Case Analysis (2018). E.L.C. Misc Case No. 29 of 2015 (Formerly Misc Application 160 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2282/eng@2018-07-19

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