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ELCDismissedE.L.C. Case No. 23 of 2015· [2019] KEELC 4440 (KLR)

Republic v Attorney General; Ex-parte Dominic D. Mbogo; Dickson Kanyaki Simon & another (Interested Parties) [2019] KEELC 4440 (KLR)

Environment and Land Court of Kenya at Embu
28 February 2019
2,958 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 at Embu dismissed a landowner's attempt to overturn a 2007 family land tribunal award, warning that delay, incomplete disclosure and unfairness to other parties can defeat even a strong case.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Embu determined an ex-parte notice of motion dated 26th February 2018 in which Dominic D. Mbogo sought an order of certiorari to quash an award of the Embu District Land Disputes Tribunal dated 22nd August 2007, which had been adopted as a decree in Embu CMCC Award Case No. 36 of 2007 and executed by sub-division of the family land. The Tribunal's award had apportioned the suit property, Kagaari/Kanja/1038, among the Applicant, his father (the 1st interested party, since deceased) and his siblings. The court framed three issues: defectiveness under Order 53, entitlement to certiorari, and costs. On limitation, it held that Order 53 Rule 2 requires the application for leave (filed within time in December 2007) rather than the substantive motion to be lodged within six months. Non-compliance with Order 53 Rule 7(1), in failing to lodge an affidavit-verified copy of the award, was held not fatal, the court invoking Article 159(2)(d) of the Constitution and section 19(1) of the Environment and Land Court Act. Certiorari was nonetheless refused: the deceased 1st interested party was not heard through any personal representative; Kelvin Murimi, an awarded beneficiary, was never served; the suit property no longer existed, having been sub-divided, mutated in 2014 and extensively developed; and the Applicant had failed to disclose these facts, misleading the court into granting a stay of an already-executed award. The notice of motion was dismissed with each party bearing their own costs, the parties being members of one family.

Key legal issues

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01

Whether the judicial review application was time-barred under Order 53 Rule 2

Holding

No violation of Order 53 Rule 2; the six-month limitation applies to the application for leave, which was filed within time on 6th December 2007

Reasoning

The court held that Order 53 Rule 2 requires the application for leave to be made within six months, not the substantive motion. The chamber summons for leave was filed on 6th December 2007, within six months of both the Tribunal's award and the decree. The Applicant's delay of about ten years in prosecuting the leave application was his undoing but did not breach the Rule.

p. 3
02

Whether non-compliance with Order 53 Rule 7(1) invalidated the application

Holding

The Applicant did not lodge an affidavit-verified copy of the award and decree, but the failure is not fatal as no prejudice was shown; the court exercised its discretion under Article 159(2)(d) and section 19(1) of the ELC Act to determine the matter

Reasoning

The court found there was no compliance with Rule 7(1) as no verified copy of the award was lodged with the Registrar and no explanation given. However, a copy of the award and decree existed on record though unverified, and no party demonstrated prejudice. The court therefore invoked the override of procedural technicalities to proceed to determine the application on its merits.

p. 3
03

Whether certiorari should issue to quash the Tribunal's award

Holding

Certiorari refused. Certiorari is discretionary; it was declined because the deceased 1st interested party was not heard through his representative, beneficiary Kelvin Murimi was not served, the suit property had been subdivided and the award fully executed, and the Applicant failed to make full and faithful disclosure, misleading the court into granting a stay

Reasoning

Although the Applicant's complaint that the Tribunal lacked or exceeded jurisdiction may have been well founded, the court exercised its discretion against granting the prerogative order. Judicial review concerns the decision-making process, not merits, and is discretionary. Condemning unheard parties would violate natural justice; the award had been fully executed; and the Applicant's lack of candour disentitled him to the discretionary remedy.

p. 3

Legal principles established

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  • What must be filed within six months under Order 53 Rule 2 is the application for leave, not the substantive notice of motion
  • Failure to lodge with the registrar a certified copy of the quashed proceedings under Order 53 Rule 7(1) is not fatal where no prejudice is suffered, in light of Article 159(2)(d) and section 19(1) of the Environment and Land Court Act
  • Judicial review is discretionary and may be declined even where formal requirements are met
  • Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise

Court orders

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  1. 1.The notice of motion dated 26th February 2018 is dismissed
  2. 2.Each party shall bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 (Rules 1, 2, 4 and 7(1))
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSection 19(1)
  • Civil Procedure Act (Cap 21)Section 27
  • Land Disputes Tribunals Act
  • Registered Land Act

Cases cited (2)

  • Kenya Breweries Ltd Vs Municipal Council of Mombasa & 4 Others
    (2009) eKLR
  • Municipal Council of Mombasa Vs Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya and section 19(1) of the Environment and Land Court Act, 2011

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 Attorney General; Ex-parte Dominic D. Mbogo; Dickson Kanyaki Simon & another (Interested Parties) [2019] KEELC 4440 (KLR)", Case Analysis (2019). E.L.C. Case No. 23 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4440/eng@2019-02-28

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