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ELCDismissedJudicial Review application filed by notice of motion dated 29th April 2015 (number not stated in judgment)· [2020] KEELC 1722 (KLR)

Republic v Land Adjudication and Settlement Officer Tigania East/West Demarcation Office & another Exparte Benjamin Mugambi Mukindia; M’Itaru Kabari (Interested Party) [2020] KEELC 1722 (KLR)

Environment and Land Court
14 July 2020
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex-parte applicant moved the Environment and Land Court at Meru by notice of motion dated 29th April 2015 under Order 53 Rule 3 of the Civil Procedure Rules, seeking an order of certiorari to quash a decision of the Land Adjudication Officer Tigania East/West dated 12/2/2015 in objection proceedings No. 1149 of 2015 concerning Folio No. 155 Akaiga Adjudication Section, and an order of prohibition against the second respondent acting on that decision. He claimed he had always owned the 16.62-acre parcel, that 5 acres had been excised and given to the interested party, and that the adjudication officer cancelled his name from the register and inserted the interested party's name without hearing him, contrary to the rules of natural justice. The interested party opposed, averring he had purchased 6 acres from the applicant in 1985 and had lived on the land peacefully for 30 years, and contended that the suit was unmerited because no copy of the impugned decision was exhibited. The court, applying the settled principle that judicial review concerns the decision-making process rather than the merits, found that the applicant had failed to attach the proceedings or the decision of 12/2/2015; his document BMM3 was undated, unsigned and did not evidence any proceedings or decision. Since no decision capable of being quashed was exhibited, and the applicant did not exhibit the actual sins of the adjudication officer, the motion was dismissed with each party bearing their own costs. The court also expressed dismay at the respondents' failure to participate despite being represented.

Key legal issues

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01

Whether judicial review remedies could issue where the challenged decision and proceedings were not exhibited

Holding

No - certiorari cannot issue where no proceedings or decision are availed capable of being quashed

Reasoning

The applicant challenged a decision of 12/2/2015 in objection proceedings but did not attach the proceedings or the decision. His document BMM3 was an undated, unsigned record that did not reflect any proceedings or decision. Applying the Kenya Power case, the actual sins of the tribunal must be exhibited; absent that, the prayers cannot be granted. The respondents' silence did not shift the burden of proof onto them.

p. 2
02

Scope of judicial review

Holding

Judicial review is confined to the decision-making process and does not extend to the merits

Reasoning

Adopting the Municipal Council of Mombasa authority, the court reiterated that judicial review examines whether the decision-maker had jurisdiction, whether affected persons were heard, and whether relevant matters were considered; a review court is not an appellate court over the decider and cannot assess sufficiency of evidence.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • An applicant in judicial review must exhibit the actual sins of the tribunal, not merely allege illegality, unreasonableness or breach of natural justice

Court orders

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  1. 1.The notice of motion filed on 29/4/2015 is dismissed
  2. 2.Each party to bear their own costs of the suit
  3. 3.Judgment delivered by electronic mail in line with COVID-19 practice directions, parties deemed to have waived compliance with Order 21 rule 1 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3
  • Civil Procedure RulesOrder 21 rule 1
  • Land Adjudication Act, Cap 284Section 26
  • Land Consolidation Act, Cap 283Section 26

Cases cited (3)

  • Municipal Council Of Mombasa V Republic And Another
    2002 eKLR
  • Samwel Kubai M'ithiria v District Commissioner & 2 others
    [2019] eKLR
  • Republic vs Kenya Power and Lighting Company Limited & another
    [2013] eKLR
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules (judicial review)

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 Land Adjudication and Settlement Officer Tigania East/West Demarcation Office & another Exparte Benjamin Mugambi Mukindia; M’Itaru Kabari (Interested Party) [2020] KEELC 1722 (KLR)", Case Analysis (2020). Judicial Review application filed by notice of motion dated 29th April 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1722/eng@2020-07-14

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