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ELCStruck OutJudicial Review (ELC), Nyeri – Notice of Motion dated 20th March 2019· [2019] KEELC 2022 (KLR)

Republic v National Land Commission; County Government of Nyeri & 8 others (Interested Parties); Exparte Ephraim Muriuki Wilson & 3 others [2019] KEELC 2022 (KLR)

Environment and Land Court
25 July 2019
2,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nyeri struck out landowners' attempt to save their titles through judicial review, ruling they must instead file a proper civil land suit.

What this practically means

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Executive summary

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The ex parte Applicants, holders of titles to Plots Block 1/421-450 in Sofia Area, Karatina, sought leave to apply for an order of certiorari to quash a determination of the National Land Commission dated 21st January 2019 revoking their titles, together with an order of prohibition against any revocation. They argued that the NLC lacked mandate under Section 14 of the National Land Commission Act, its mandate having expired in May 2017, and that they were denied a hearing contrary to Articles 47 and 50 of the Constitution. The application was opposed by the interested parties, who contended that the Applicants had been given opportunities to participate, that a complaint had been lodged within the statutory five-year window, that the matter was res judicata Nairobi Judicial Review No. 12 of 2017, and that the suit was a disguised land ownership claim unsuitable for judicial review. Relying on Matiba v AG, Nzioka, Meixner and Mirugi Kariuki, Oundo, J held that the leave stage is a filter against frivolous and vexatious applications, that the Applicants had failed to show a prima facie case, and that the application was res judicata the earlier dismissed judicial review over the same plots. The court found the dispute to be one of land ownership proper for a civil suit, judicial review being a remedy of last resort. The application for leave was disallowed and the proceedings were struck out with costs to the interested parties.

Key legal issues

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01

Res judicata

Holding

The application is res judicata Nairobi Judicial Review No. 12 of 2017, in which a similar challenge to the NLC's power over the same plots was dismissed with costs

Reasoning

The Applicants had previously challenged the Respondent's power to hear complaints over the same Plots No. S E.1 to E.18 (now Block 1/422-450) in Nairobi Judicial Review No. 12 of 2017, where the court dismissed the application, finding a land dispute disguised as judicial review. Filing a similar application constituted re-litigation of the same issues.

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02

NLC mandate under Section 14

Holding

The NLC mandate to review grants of public land had not necessarily expired, as a complaint by the Nyeri County Residents Association was raised on 1st October 2014, within five years of commencement of the Act

Reasoning

The Applicants argued the NLC determination of 21st January 2019 was made after expiry of its mandate in May 2017. The interested parties countered that Section 14 allows review within five years of commencement of the Act, and a complaint had been lodged within that window, rendering the review lawful.

p. 3
03

Leave to apply for judicial review

Holding

Leave was refused because the Applicants failed to demonstrate a prima facie case and the suit was an abuse of process

Reasoning

Applying Matiba v AG, Nzioka, Meixner and Mirugi Kariuki, the court held leave is a filter against frivolous and vexatious applications. The Applicants failed to show a prima facie failure of public duty; the underlying dispute is one of land ownership requiring a civil suit, and judicial review is a remedy of last resort.

p. 4

Legal principles established

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  • Leave stage in judicial review is a filter to weed out frivolous, vexatious and abusive applications
  • An applicant for leave must show a prima facie case of failure of public duty
  • Judicial review is a remedy of last resort and land ownership disputes cannot be brought by way of judicial review

Court orders

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  1. 1.The application for leave to apply for judicial review is declined and disallowed
  2. 2.The proceedings are struck out with costs to the interested parties
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under Order 53 Civil Procedure Rules; challenge to decision of the National Land Commission under Article 67 and Section 14 of the National Land Commission 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, "Republic v National Land Commission; County Government of Nyeri & 8 others (Interested Parties); Exparte Ephraim Muriuki Wilson & 3 others [2019] KEELC 2022 (KLR)", Case Analysis (2019). Judicial Review (ELC), Nyeri – Notice of Motion dated 20th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2022/eng@2019-07-25

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