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ELCPartially AllowedChamber Summons application dated 29th January, 2019 (Judicial Review)· [2019] KEELC 1452 (KLR)

Lemaron Munyepera & 2 others v Land Adjudication Officer - (Kajiado County) & 4 others [2019] KEELC 1452 (KLR)

High Court of Kenya (Environment and Land Court)
7 October 2019
COChristine Ochieng
1,308 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 allowed the Rombo Group Ranch election challenge to proceed, but refused to halt the election results while the case is heard.

What this practically means

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Executive summary

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This was an ex parte chamber summons application dated 29th January 2019 seeking leave to institute judicial review for orders of certiorari, prohibition and mandamus against the conduct of elections of officials to Rombo Group Ranch, together with consequential orders that leave operate as a stay of the 1st Respondent's decision of 6th December 2018 and a temporary injunction. The Applicants alleged the elections were marred by irregularities, intimidation, violence and lack of transparency, noting that 11,762 votes were reportedly cast against a register of 3,382 voters. The 1st and 2nd Respondents, through the Kajiado County Land Adjudication and Settlement Officer, maintained that the parties had agreed on modalities including the mlolongo (queueing) system, and that the elections were properly conducted. The 3rd and 4th Respondents similarly opposed, arguing the orders had been overtaken by events given a 53-day delay. The 2nd Applicant filed a Notice of Withdrawal. The court framed a single issue: whether the Applicants were entitled to leave. Applying Order 53 Rule 1 and the authority of Director of Public Prosecutions v Pius Ngugi Mbugua ex-parte Muktar Saman Olow, the judge held that judicial review concerns process rather than merits, and that the Applicants had raised pertinent process issues. Leave was granted for 21 days to the 1st and 3rd Applicants to file a substantive motion. However, considering the large community membership and the 53-day delay, the court refused to make leave operate as a stay and refused the temporary injunction. Costs were ordered in the cause.

Key legal issues

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01

Entitlement to leave to institute judicial review

Holding

Leave was granted to the 1st and 3rd Applicants (the 2nd Applicant having withdrawn) for 21 days to file a substantive motion, the Applicants having raised pertinent issues regarding the process of the Rombo Group Ranch elections.

Reasoning

The court applied Order 53 Rule 1, which requires leave before an application for mandamus, prohibition or certiorari. Following Justice Aburili in Director of Public Prosecutions & 2 Others v Pius Ngugi Mbugua & Another ex-parte Muktar Saman Olow (2017) eKLR, the court reiterated that judicial review concerns process, not merits. It therefore confined itself to whether pertinent process-related issues were raised, and found that they were, granting leave for 21 days.

p. 2
02

Whether leave should operate as a stay and whether a temporary injunction should issue

Holding

Both refused because of the 53-day delay in moving the court and the effect on a large community of ranch members.

Reasoning

Although Order 53 Rule 1(4) permits leave for certiorari or prohibition to operate as a stay if the judge so directs, the court exercised its discretion against it, noting the register demonstrated a large community membership and that the application had been filed 53 days after the elections. The temporary injunction was declined on the same basis.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision.
  • At the leave stage the court does not analyse the merits or demerits of the impugned conduct but whether pertinent issues have been raised.

Court orders

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  1. 1.Leave granted to the 1st and 3rd Applicants for 21 days to file and serve a substantive motion for certiorari, mandamus and prohibition
  2. 2.Application by the 2nd Applicant noted as withdrawn (Notice of Withdrawal of suit filed)
  3. 3.Prayer that leave operate as a stay of the 1st Respondent's decision dated 6th December, 2018 declined
  4. 4.Prayer for temporary injunction pending hearing and determination of the suit declined
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1(1), (2), (3), (4)

Cases cited (1)

  • Direction of Public Prosecutions & 2 Others v Pius Ngugi Mbugua & Another ex-parte Muktar Saman Olow
    (2017) eKLR
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules (leave to institute 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, "Lemaron Munyepera & 2 others v Land Adjudication Officer - (Kajiado County) & 4 others [2019] KEELC 1452 (KLR)", Case Analysis (2019). Chamber Summons application dated 29th January, 2019 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1452/eng@2019-10-07

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