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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 27th January, 2016)· [2019] KEELC 2619 (KLR)

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)

High Court of Kenya (Judicial Review Division)
4 July 2019
4,495 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The ex-parte applicant, chairman of Kamiti Forest Squatters Association (KAFSA), sought judicial review orders of certiorari and prohibition against a letter dated 5th October 2015 in which the National Land Commission communicated findings and a recommendation to the Director of Kenya Forest Service that land known as Kamiti/Anmer/8390 (419 acres) be de-gazetted to enable processing of ownership documents. The applicant contended the land was meant for about 1,200 squatters and IDPs, that its allocation had been nullified, and that the Commission's decision validated a flawed process and was made without notice of a stakeholders' meeting in breach of natural justice. The respondents and the 1st interested party (KADA) argued the letter was merely a recommendation, not a decision; that the meeting was consultative; and that the prayer for prohibition was superfluous since the land remained gazetted forest. The court found that the applicant's verifying affidavit set out no facts, so the statutory statement and annexures had no evidential value, rendering the application unsustainable. On the merits, the court held the Commission had acted as mediator in a consultative process under Article 67(2)(f) of the Constitution and Section 5 of the National Land Commission Act, and its letter was not a decision affecting legal rights and thus not amenable to judicial review. Even if it were, no valid grounds for quashing were established, KAFSA members having attended and been heard. The Notice of Motion was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether the NLC letter of 5th October 2015 was a reviewable decision

Holding

It was not; it was a communication of findings and a recommendation to a third party following a consultative/mediation process

Reasoning

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.

p. 4
02

Whether the applicant's evidential material could sustain the application

Holding

No; the verifying affidavit stated no facts, so the statutory statement and its annexures had no evidential value and the application had no basis

Reasoning

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.

p. 4
03

Whether the consultative meeting breached the rules of natural justice

Holding

No; KAFSA was invited, about 20 of its members attended and participated, and the applicant did not refute this

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 27th January, 2016 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 87 (as cited by respondents, sic - evidently Article 67(2)(f))
  • Constitution of KenyaArticle 67(2)(f)
  • National Land Commission ActSection 5(f)
  • National Land Commission Act, 2012Section 5(1)(e) and (f); Section 5(2)(f)

Cases cited (3)

  • Commissioner General Kenya Revenue Authority v Silvano Onema Owaki
    Kisumu Court of Appeal Civil Appeal No. 45 of 2000
  • Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Attorney General v Ryath
    (1980) AC 718
Jurisdiction invoked
Judicial review jurisdiction of the High Court (orders of certiorari and prohibition) following leave granted on 27th January, 2016

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 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.