Republic v Chairman National Land Commision & 2 others; Macharia Kinyanjui (Chairman, Kamiti Anmer Development Association) & another (Interested Parties); Ex-parte Peter Njore Wakaba (Chairman Kamiti Forest Squatters Association) [2019] KEELC 2619 (KLR)
The bottom line
#Kenya's High Court dismissed a squatters' group's challenge to a National Land Commission letter, stressing that judicial review applications must be backed by facts in the verifying affidavit.
What this practically means
#Executive summary
#Key legal issues
#Whether the NLC letter of 5th October 2015 was a reviewable decision
It was not; it was a communication of findings and a recommendation to a third party following a consultative/mediation process
The 2nd respondent had invoked its mandate under Article 67(2)(f) of the Constitution and Section 5(2)(f) of the National Land Commission Act to help parties resolve their dispute. In the consultative meeting it acted as mediator, not a tribunal, and was not expected to make a binding decision. The letter merely communicated findings to the Director of Kenya Forest Service, who was not bound by them, and did not affect the legal rights of KAFSA members.
Whether the applicant's evidential material could sustain the application
No; the verifying affidavit stated no facts, so the statutory statement and its annexures had no evidential value and the application had no basis
Relying on Commissioner General KRA v Silvano Onema Owaki, the court held all facts relied upon must be in the verifying affidavit. The applicant's six-paragraph verifying affidavit had no annexures and did not state the complaint; the supplementary affidavit did not cure the deficiency. The application therefore had no leg to stand on.
Whether the consultative meeting breached the rules of natural justice
No; KAFSA was invited, about 20 of its members attended and participated, and the applicant did not refute this
Apart from allegations in the statutory statement, no evidence showed the invitation was received after the meeting. Members of KAFSA having been given an opportunity to be heard and not having utilised it could not claim a breach of natural justice.
Legal principles established
#- Facts relied on in judicial review applications must be contained in the verifying affidavit; facts set out only in the statutory statement have no evidential value
- A mere recommendation or communication of findings to a third party is not a decision amenable to judicial review
- Judicial review is concerned with process, not the merit of a decision
- Only certiorari can quash a decision already made; certiorari issues where a decision is made without or in excess of jurisdiction or in breach of natural justice (as stated in KNEC v Republic, Ex-parte Gathenji Njoroge)
Court orders
#- 1.The Notice of Motion dated 27th January, 2016 is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of certiorari and prohibition) following leave granted on 27th January, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chairman National Land Commision & 2 others; Macharia Kinyanjui (Chairman, Kamiti Anmer Development Association) & another (Interested Parties); Ex-parte Peter Njore Wakaba (Chairman Kamiti Forest Squatters Association) [2019] KEELC 2619 (KLR)", Case Analysis (2019). Judicial Review Miscellaneous Application (Notice of Motion dated 27th January, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2619/eng@2019-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.