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ELCStruck OutJudicial Review Notice of Motion dated 23/7/2019 (number not stated in judgment)· [2019] KEELC 651 (KLR)

Republic v Cabinet Secretary Lands & another; Orwa Group Ranch Representatives (Interested party) Ex-Parte Patrick Pkiach & 6 others [2019] KEELC 651 (KLR)

High Court of Kenya
19 November 2019
MNMwangi Njoroge
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a land-related judicial review case filed years too late, and ruled you cannot get an injunction through judicial review in Kenya.

What this practically means

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Executive summary

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This ruling by Mwangi Njoroge J at the High Court, Kitale determined a notice of motion dated 23/7/2019 in judicial review proceedings brought by Patrick Pkiach and others challenging, by certiorari, the 2015 cancellation of the certificate of incorporation of Orwa Group Ranch and the 2016 issuance of a new certificate to rival group representatives. The applicants also sought injunctions restraining the current group representatives from alienating, disposing of or subdividing West Pokot/Orwa Group Ranch parcels 1, 2 and 3, and from operating Equity Bank Account No. 1070175561152, in which KETRACO had deposited approximately Kshs.19,000,000 as an instalment for an easement over the ranch land. The interested party and the respondents raised preliminary objections: that the certiorari application was filed out of the six-month limit under Order 53 and Section 9(2) of the Law Reform Act, and that injunctions cannot issue in judicial review proceedings. The court framed three issues: limitation, availability of injunction, and costs. Relying on Rosaline Tubei, John Kaberia, and the Court of Appeal's decision in Cortec Mining Kenya Ltd, the court held that the certiorari proceedings were time-barred and that an injunction is a private law remedy unavailable in judicial review, which is sui generis and confined to certiorari, mandamus and prohibition. The applications dated 13/5/2019 and 23/7/2019 were struck out with costs to the respondents.

Key legal issues

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01

Time-limitation for certiorari in judicial review

Holding

The certiorari proceedings were fatally defective as they were filed more than six months after the impugned decision of 2016.

Reasoning

Order 53 rule 7 and Section 9(2) of the Law Reform Act prescribe a six-month limit for certiorari. The impugned decisions (cancellation of the certificate and issue of the new certificate) were of 2015 and 2016, while the motion was filed in July 2019. Although leave had been granted ex-parte, the court held such leave could be revisited at the substantive stage. The objection on limitation was upheld.

p. 3
02

Availability of injunction in judicial review proceedings

Holding

An injunction cannot issue in judicial review proceedings under the Law Reform Act; the only orders available are certiorari, mandamus and prohibition.

Reasoning

Following the Court of Appeal in Cortec Mining Kenya Ltd, the court held that judicial review under Section 8 of the Law Reform Act is sui generis and confines the court to public law remedies. An injunction is a private law remedy and falls outside the amplitude of reliefs available in judicial review. Provisions of the Civil Procedure Rules such as Order 40 cannot be imported into Order 53 proceedings.

p. 4

Legal principles established

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  • An application for an order of certiorari must be made not later than six months after the date of the proceeding, and proceedings filed out of time do not lie
  • An injunction cannot be granted in judicial review proceedings under the Law Reform Act, which confines the court to prerogative orders of certiorari, mandamus and prohibition
  • Leave granted ex-parte to commence judicial review can be revisited and set aside at the substantive stage, including where the motion is time-barred

Court orders

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  1. 1.The applications dated 13/5/2019 and 23/7/2019 were found incompetent and struck out
  2. 2.Costs of the applications awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 (leave for certiorari - six months)
  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure ActSections 1A, 3, 3A and 63(e)
  • Law Reform ActSection 9(2) and Section 8
  • Government Proceedings ActSection 13A
  • Appellate Jurisdiction ActSection 3(3)
  • Land (Group Representatives) ActCap 287 (repealed)
  • Community Land ActSaving and transitional provisions (2016)

Cases cited (8)

  • Rosaline Tubei & 8 Others v Patrick Cheruiyot & 3 Others
    2014 eKLR
  • Republic vs CCK Ex Parte East African Television Network Ltd
    2001 eKLR
  • John Kaberia v District Land Adjudication And Settlement Officer Igembe South District & 2 Others
    2018 eKLR
  • Republic vs KENHA & 2 others Ex parte Amica Business Solutions Ltd
    2016 eKLR
  • Cortec Mining Kenya Ltd v Cabinet Secretary, Attorney General and 8 Others
    2015 eKLR
  • Commissioner Of Lands v Kunste Hotel Limited
    1997 eKLR
  • Jim Kipkore v Chief Magistrate's Court Kitale & 2 Others
    2019 eKLR
  • Republic v County Government of Kajiado & 2 Others, Ex Parte Leah Wanjiru Mburu
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules and Section 9 of 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 Cabinet Secretary Lands & another; Orwa Group Ranch Representatives (Interested party) Ex-Parte Patrick Pkiach & 6 others [2019] KEELC 651 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion dated 23/7/2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/651/eng@2019-11-19

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