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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 21st August, 2017)· [2018] KEELC 2950 (KLR)

Mohamed Shahid Moughal v National Land Commission & 4 others [2018] KEELC 2950 (KLR)

Environment and Land Court
12 June 2018
COChristine Ochieng
1,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused a landowner's bid to challenge a land registrar by judicial review because an existing lawsuit already covered the same dispute.

What this practically means

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Executive summary

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The Applicant, Mohamed Shahid Mougal, moved the court by Notice of Motion dated 21st August 2017 under Order 53 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 40 of the Constitution, seeking leave to commence judicial review proceedings for orders of mandamus, prohibition and certiorari against the Land Registrar and other respondents. He claimed that he had bought 79 acres under a sale agreement with the 4th Respondent, fenced 69 acres and lodged a caution, which the 2nd Respondent (Land Registrar) unlawfully removed without his consent or a court order, and thereafter issued titles to third parties despite the matter being pending in court. The 2nd and 3rd Respondents filed grounds of opposition, contending the subject matter had been determined in Succession Cause No. 680 of 2010, was the subject of a pending transferred suit (Nairobi ELC Case No. 999 of 2012), and had featured in a criminal case in which the 4th Respondent was acquitted. The 4th Respondent, Michael Mooke Kikaye, averred that the caution was lawfully removed, the land was subdivided in 2015 with beneficiaries taking possession, and the application was an abuse of court process. Framing the sole issue as whether the Applicant was entitled to leave, the court applied Waki J's parameters in the Kwale County Council ex parte Kondo case, noting the Applicant had notice of the intended removal and that a pending suit already dealt with the dispute. Holding that judicial review is a remedy of last resort, the court declined to grant leave and struck out the proceedings as misconceived, with each party bearing their own costs.

Key legal issues

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01

Whether the Applicant was entitled to leave to commence judicial review proceedings

Holding

Leave was refused; the application was misconceived because the Applicant had notice of the caution's removal and an existing suit covered the same land dispute

Reasoning

Applying Waki J's parameters in the Kwale County Council case, the court held that leave filters out frivolous, vexatious or hopeless applications. Here the Applicant was notified of the intended removal of the caution and objected; more importantly, a pending suit in the same court already dealt with the dispute over the suit land. Judicial review being a remedy of last resort, the court declined to exercise its discretion and struck out the proceedings.

p. 3

Legal principles established

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  • The purpose of leave in judicial review is to eliminate frivolous or vexatious applications and ensure only arguable cases proceed to substantive hearing
  • Judicial review is a remedy of last resort and unavailable where other appropriate remedies exist

Court orders

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  1. 1.Leave to commence judicial review proceedings declined
  2. 2.The proceedings struck out as misconceived
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1, 2, 3, 4, 2(4)(1) and 7(2)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 40(1), (2), (3), (4), (5) and (6)

Cases cited (1)

  • Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
Jurisdiction invoked
Order 53 rules 1, 2, 3, 4, 2(4)(1) and 7(2) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Articles 40(1)-(6) of the Constitution

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, "Mohamed Shahid Moughal v National Land Commission & 4 others [2018] KEELC 2950 (KLR)", Case Analysis (2018). Judicial Review Miscellaneous Application (Notice of Motion dated 21st August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2950/eng@2018-06-12

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