Republic v County Government of Tana River & 2 others [2018] KEELC 2814 (KLR)
The bottom line
#A Kenyan court struck out a judicial review case, ruling that land ownership disputes must be resolved through a proper land suit with evidence, not review.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC in judicial review over land ownership disputes
The preliminary objection is upheld; the court cannot adjudicate land ownership in judicial review proceedings
The court found the underlying dispute was ownership of trust land, which requires viva voce evidence and cross-examination unavailable in judicial review. Following Ahmed Siad Mohammed and Republic v Exparte Karia, certiorari and prohibition were not created to settle ownership disputes or confer title. The proper forum is a suit before the ELC or magistrates' court exercising ELC jurisdiction.
Discretionary nature of judicial review remedies
Even if the impugned letter were irregular, the court would refuse judicial review orders as futile
The court held that judicial review is discretionary and will not issue unless it serves some purpose. Quashing the notice of 29th November 2017 would not resolve the ownership question, so the orders sought would not be the most efficacious remedy. The dispute would still require pleadings and viva voce evidence in another forum.
Legal principles established
#- Where a preliminary objection is raised as to the court's jurisdiction, the court must first inquire into its jurisdiction before proceeding
- Judicial review remedies are not designed to determine ownership of land or confer title; such disputes require viva voce evidence at a full hearing
- Judicial review is a discretionary remedy which the court may refuse even where grounds for its grant exist
Court orders
#- 1.The preliminary objection is upheld
- 2.The notice of motion dated 5th January 2018 is struck out
- 3.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Order 53; challenged on the basis of Article 162(2)(b), Article 165(5)(6) and (7) of the Constitution and Section 13(7)(b) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Tana River & 2 others [2018] KEELC 2814 (KLR)", Case Analysis (2018). Judicial Review Application No. 25 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2814/eng@2018-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.