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ELCDismissedNot stated in the judgment· [2019] KEELC 903 (KLR)

Republic v National Land Commission & another; Kibirgen Kimaiyo & 6 others (Interested Parties) Ex-Parte Philip Kiptoo Tunoi [2019] KEELC 903 (KLR)

Environment and Land Court
26 September 2019
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to add parties and scrutinise agreements in a judicial review case, warning that review courts examine process, not ownership.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on a Notice of Motion dated 22nd May 2019 brought by an Ex-parte Applicant in judicial review proceedings against the National Land Commission. The applicant, appearing in person, sought (a) to enjoin Thomas Rugut, Julius Tirop and Nyairo and Company, Advocates as parties for purposes of producing information or evidence; (c) inspection of the High Court Civil Case No. 34 of 1983 file to determine who drew and filed it; and (d) production of four agreements held by the 1st Respondent for scrutiny on the basis that they were invalid and forged and ought to be expunged. The application was canvassed by written submissions. The court found the application unclear as to the orders sought, held that a party seeking enjoinder must establish a stake in the suit and that the enjoinder would assist in effectually determining the matter, and concluded the applicant had not done so. Applying Noel George Khaaba v Wanandege Housing Co-op Society Limited, it held the application was not grounded in any law and that orders cannot be granted in a vacuum. Relying on Chief Constable of the North Wales Police v Evans, the court emphasized that judicial review is a limited process concerned with the fairness of the decision-making process, not the underlying evidence of ownership. The application was dismissed as an abuse of court process with costs to the respondents.

Key legal issues

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01

Whether the persons and advocates sought to be enjoined are necessary parties

Holding

The enjoinder was refused because the applicant failed to establish that the proposed parties have a stake in the suit or would assist the court in effectually determining the matter; the application for enjoinder was an abuse of process

Reasoning

The court applied the settled rule on enjoinder of interested parties: the applicant must show a stake in the suit and that the enjoinder would assist in the just and effectual determination of the matter. Finding none established, and noting the application was not grounded in any law, the court held enjoining the parties would add evidence on ownership rather than illuminate the fairness of the decision-making process, and dismissed the application as an abuse of process.

p. 2
02

Scope of judicial review relied on by the court

Holding

The court reiterated that judicial review concerns the fairness of the decision-making process, not the correctness of ownership claims or the underlying evidence

Reasoning

Relying on Chief Constable of the North Wales Police v Evans, the court framed the purpose of judicial review as ensuring fair treatment of the individual rather than substituting the court's view of the correct conclusion. Production of the four agreements would only increase evidence relevant to ownership, which is outside the supervisory function; the proper inquiry was whether the 1st Respondent conducted a fair hearing.

p. 2

Legal principles established

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  • A party seeking to be enjoined as an interested party must establish a stake in the suit and that the enjoinder will assist the court in effectually determining the matter
  • Judicial review is a limited process concerned with the decision-making process, not the merits of ownership or the adequacy of the evidence underpinning a decision
  • The court cannot grant orders not grounded in any specific law or procedure

Court orders

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  1. 1.The application dated 22nd May 2019 is dismissed with costs to the respondents

Authorities

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Legislation

  • Environment and Land Court ActNot specified

Cases cited (2)

  • Noel George Khaaba v Wanandege Housing Co-op Society Limited
    [2014] eKLR
  • Chief Constable of the North Wales Police v Evans
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (the judgment references the Environment and Land Court Act and the limited nature of judicial review)

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 National Land Commission & another; Kibirgen Kimaiyo & 6 others (Interested Parties) Ex-Parte Philip Kiptoo Tunoi [2019] KEELC 903 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/903/eng@2019-09-26

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