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ELCOtherJR application dated 1/7/2019 re Case No. 164 of 1995 LR No. 461 Chepareria Adjudication Section Ariworen Ruatanyang· [2019] KEELC 1406 (KLR)

Musa Tapem v Director of Land Adjudication and Settlement & another [2019] KEELC 1406 (KLR)

Environment and Land Court (judicial review jurisdiction)
30 September 2019
MNMwangi Njoroge
799 words in judgment
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The bottom line

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A Kenyan court refused to pause a land minister's decision because it had already been carried out—you must seek a stay before a decision is implemented, not after.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J.) determines whether leave granted on 3/7/2019, upon presentation of the applicant's judicial review application dated 1/7/2019, should operate as a stay. The applicant sought certiorari to quash the proceedings, directions and decisions of the Cabinet Secretary in Case No. 164 of 1995 LR No. 461 Chepareria Adjudication Section Ariworen Ruatanyang, contending that the 1st respondent lacked jurisdiction because the registered owner was deceased, that the applicant as administrator had had the dispute decided twice in his favour by the Land Adjudication Committee, that the matter was filed out of time and determined without his knowledge, and that the 2nd respondent had no locus standi yet obtained a title. The 2nd respondent opposed via grounds of opposition, arguing the decision had been implemented, he held title to West Pokot/Chepareria/461, the application was an abuse of process and a delay tactic against Kitale ELC No. 100 of 2015, and there had been inordinate delay. The court acknowledged it had favourably considered leave, observing that quashing the Minister's decision would affect the 2nd respondent's title and that the applicant's grounds were weighty, to be proved at the substantive motion. However, prayer No. 3 did not state what was sought to be stayed; since the Ministerial proceedings had concluded and the decision been implemented, the court found nothing to be stayed, dismissed prayer No. 3 as a matter of draftsmanship, and made no orders as to costs.

Key legal issues

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Whether leave granted on 1/7/2019 should operate as a stay of the Minister's decision

Holding

No - the prayer was dismissed because the Ministerial proceedings had concluded and the decision implemented; nothing remained to be stayed

Reasoning

The court had already granted leave to apply for certiorari, noting that quashing the Minister's decision would affect the title held by the 2nd respondent and that the grounds were weighty, to be tested at the substantive motion. However, prayer No. 3 did not specify what was to be stayed. Given that the proceedings before the Minister in Case No. 164 of 1995 had concluded and the decision been implemented (resulting in registration in the 2nd respondent's name), the court found nothing existed to be stayed and dismissed prayer No. 3 as a matter of draftsmanship, not merit.

p. 2

Legal principles established

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  • Leave on a judicial review application cannot operate as a stay where the underlying proceedings have been concluded and the decision implemented, so that there is nothing in existence to be stayed
  • A defect in the formulation of a prayer is a matter of draftsmanship, not of the merits of the application

Court orders

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  1. 1.Prayer No. (3) in the application dated 1/7/2019 is dismissed
  2. 2.No orders as to costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A(a), 1B(1)
  • Constitution of Kenya, 2010Article 159(2)(b)
Jurisdiction invoked
Judicial review (certiorari) - leave to apply for an order of certiorari to remove into the court and quash proceedings, directions and decisions of the Cabinet Secretary; reference to Article 159(2)(b) of the Constitution and Sections 1A(a), 1B(1) of the Civil Procedure Act

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, "Musa Tapem v Director of Land Adjudication and Settlement & another [2019] KEELC 1406 (KLR)", Case Analysis (2019). JR application dated 1/7/2019 re Case No. 164 of 1995 LR No. 461 Chepareria Adjudication Section Ariworen Ruatanyang. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1406/eng@2019-09-30

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