Republic v National Land Commission; County Government of Nyeri & 8 others (Interested Parties); Exparte Ephraim Muriuki Wilson & 3 others [2019] KEELC 2022 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
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
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.
NLC mandate under Section 14
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
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.
Leave to apply for judicial review
Leave was refused because the Applicants failed to demonstrate a prima facie case and the suit was an abuse of process
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.
Legal principles established
#- 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
#- 1.The application for leave to apply for judicial review is declined and disallowed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.