Republic v Gichugu Land Disputes Tribunal & another; Jane Wangeci Kiura & another (Interested Parties) Ex parte Samuel Gakono Ngari [2019] KEELC 4780 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of invoking wrong provisions of law / procedural technicalities
The preliminary objection on procedural grounds failed; Article 159(1)(d) requires courts to disregard procedural technicalities, and invoking wrong provisions does not doom a meritorious application absent bad faith or prejudice
The court applied Article 159(1)(d) and followed Gitari v Muriuki (as cited in Nancy Nyamira) that wrong provisions of law do not defeat an otherwise meritorious application unless invoked in bad faith or causing prejudice. The technicalities raised did not affect the substance of the suit, so the objection was not upheld.
Scope of judicial review
Judicial review examines the legality, rationality and procedural propriety of the decision-making process, not the merits
Relying on Municipal Council of Mombasa v Republic, the court held that a reviewing court asks how the decision was made, whether the maker had jurisdiction, whether affected persons were heard, and whether relevant matters were considered; it is not a court of appeal over the decider and cannot re-evaluate evidence.
Jurisdiction of the Land Disputes Tribunal
The Tribunal exceeded its jurisdiction by determining title to and ownership of registered land, acting ultra vires Section 3(1) of the Land Disputes Tribunal Act (repealed)
Section 3(1) confined Tribunals to disputes over division of or boundaries to land, claims to occupy or work land, and trespass. By awarding portions of registered parcels to the interested party and others, the Tribunal determined ownership of registered land, which the statute did not empower it to do; its proceedings were therefore null and void.
Legal principles established
#- A decision made without jurisdiction is null and void
- Land Disputes Tribunals under Section 3(1) of the repealed Act had no jurisdiction to determine title to or ownership of registered land
- Judicial review concerns the decision-making process, not the merits
Court orders
#- 1.An order of certiorari issued removing to the court for purposes of quashing the decision made by the Gichugu Land Disputes Tribunal dated 5th November 2009 and adopted as the judgment of the Senior Resident Magistrate's Court at Gichugu in LDT Case No. 7 of 2010 on 6th July 2010 and all consequential orders
- 2.Each party to bear her own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/ELC under Order 53 of the Civil Procedure Rules; constitutional anchor Article 159(1)(d) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Gichugu Land Disputes Tribunal & another; Jane Wangeci Kiura & another (Interested Parties) Ex parte Samuel Gakono Ngari [2019] KEELC 4780 (KLR)", Case Analysis (2019). Judicial Review application (Notice of Motion dated 26th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4780/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.