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ELCPartially AllowedNot stated in judgment (application dated 3 April 2018)· [2019] KEELC 4456 (KLR)

Republic v National Land Commission & another; Asis Store Limited & another (Interested Party) Ex parte Kenya National Corporation Limited [2019] KEELC 4456 (KLR)

Environment and Land Court
26 February 2019
MSMunyao Sila
1,068 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled you don't need the whole land file for judicial review — only the specific decision being challenged.

What this practically means

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Executive summary

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The ex-parte applicant, in a judicial review motion seeking certiorari to quash a decision of the National Land Commission dated 17 December 2015 (a 'Hearing Report on Review of Grants and Disposition of Public Land Nakuru County for Nakuru Municipality Block 6/158') and prohibition against its implementation, applied by notice of motion dated 3 April 2018 for an order compelling the Commission to produce the original File No. 191503 containing all documents and proceedings on the review, and for certified copies to be supplied to the court and parties. The application was unopposed, though counsel for the 2nd interested party termed it diversionary. The court (Munyao Sila J) held that judicial review is directed at procedure rather than substance: what was sought to be quashed was a specific award which was already annexed to the motion, not the entire land file. The court explained that it would interrogate process questions - whether due process was followed, whether the Commission had jurisdiction, and whether the applicant was heard - but not the merits, for which the whole file would be relevant. Recognising the applicant's right of access to records, the court allowed the applicant to peruse and copy File No. 191503 for its own records but declined to compel production of the file to the court. No orders were made as to costs. The application was thus partially allowed.

Key legal issues

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01

Scope of documents required in a judicial review challenge to a specific decision

Holding

Only the impugned decision itself is necessary; the whole file need not be produced where the challenge is to a specific award already before the court

Reasoning

The judicial review motion targeted the decision of 17 December 2015 titled 'Hearing Report on Review of Grants and Disposition of Public Land Nakuru County for Nakuru Municipality Block 6/158', which was annexed to the motion. The court determines process questions - due process, jurisdiction, hearing - not merits, so the whole file was unnecessary.

p. 2
02

Right of access to records

Holding

The applicant retains the right to access and copy the file for its own records, though the file need not be placed before the court

Reasoning

The court acknowledged every person's right to access records and was prepared to allow the applicant to peruse and copy File No. 191503, but found it unnecessary for the file itself to be availed to the court since the impugned award was already on record.

p. 2

Legal principles established

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  • Judicial review is concerned with procedure and process, not the merits of the decision
  • Where a specific award is impugned and already annexed to the motion, production of the entire underlying file is unnecessary

Court orders

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  1. 1.The ex-parte applicant is allowed access to peruse and make any copies of File No. 191503
  2. 2.The prayer that the said file be made available to the court is declined
  3. 3.No orders as to costs - 'I make no orders in respect of this application'

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)
Jurisdiction invoked
Original judicial review jurisdiction of the High Court/Environment and Land Court; Article 47(1) of the Constitution invoked in the substantive suit

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 & another; Asis Store Limited & another (Interested Party) Ex parte Kenya National Corporation Limited [2019] KEELC 4456 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 3 April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4456/eng@2019-02-26

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