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ELCDismissedJudicial Review application (Notice of Motion dated 8/11/2019)· [2020] KEELC 953 (KLR)

Republic v District Commissioner Igembe District & 3 others; John Kinoti Kobia (Interested party) Ex parte Grace Kanyua M’munjuri [2020] KEELC 953 (KLR)

Environment and Land Court
21 October 2020
LMLucy N. Mbugua
822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you cannot enforce a dismissed judicial review case—only actual positive court orders can be executed or implemented.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Meru (Mbugua J) on a Notice of Motion dated 8/11/2019 by John Kinoti Kobia, the Interested Party in a judicial review suit, seeking an order compelling the 3rd respondent to implement the judgment delivered on 23/02/2018. In that earlier judgment the court had dismissed the ex-parte applicant's Notice of Motion dated 6/1/2011, which had challenged the District Commissioner's decision in an appeal concerning land parcel LR No. KIENGU/KANJOO/754 Adjudication Section, on grounds of lack of jurisdiction and bias. The applicant argued that with the dismissal of the judicial review the minister's award stood, but that stay orders registered with the 3rd respondent were blocking implementation. The ex-parte applicant opposed, contending that execution cannot lie on a negative order, relying on Western College of Arts and Applied Sciences v EP Oranga and Kanwal Sarjit Dhiman v Keshavji Jivraj Shan. The court framed one issue: whether to order the 3rd respondent to implement the judgment of 23/02/2018. Applying Western College and Peter Muneria Ole Munya, the court held that a dismissed judicial review produces no positive order capable of execution. It further held that the stay orders of 20/21 December 2010, having been granted pending determination, lapsed upon the 2018 judgment. The court declared the stay orders no longer in force and vacated them, dismissed the application with no orders as to costs, and delivered the ruling electronically under the COVID-19 practice directions.

Key legal issues

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01

Whether a dismissed judicial review application yields an enforceable order

Holding

No; only a positive order is executable

Reasoning

Relying on Western College v Oranga and Peter Muneria Ole Munya, the court held that a dismissal is a negative order; any execution can only lie in respect of costs. The applicant could not compel the 3rd respondent to implement a judgment that merely dismissed the ex-parte applicant's motion.

p. 2
02

Effect of determination of the judicial review on the interim stay orders

Holding

The stay orders lapsed upon delivery of the judgment

Reasoning

The stay was granted pending hearing and determination of the judicial review; once judgment was delivered on 23/02/2018 the condition was fulfilled and the orders expired. For clarity the court formally vacated them.

p. 2

Legal principles established

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  • A negative order (dismissal of a judicial review application) is not capable of execution
  • Stay orders granted pending hearing and determination lapse upon delivery of judgment

Court orders

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  1. 1.Stay orders given on 20.12.2010 and issued on 21.12.2010 declared no longer in force and vacated
  2. 2.Application dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure Rules 2010Order 53 Rule 1; Order 21 rule 1

Cases cited (3)

  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Kanwal Sarjit Dhiman v Keshavji Jivraj Shan
    [2008] eKLR
  • Peter Muneria Ole Munya & 4 others v Principal Magistrate, Narok & 6 others
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 53 Rule 1 of the Civil Procedure Rules 2010

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 District Commissioner Igembe District & 3 others; John Kinoti Kobia (Interested party) Ex parte Grace Kanyua M’munjuri [2020] KEELC 953 (KLR)", Case Analysis (2020). Judicial Review application (Notice of Motion dated 8/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/953/eng@2020-10-21

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