Republic v National Land Commission & 2 others Ex Parte Almer Farm Limited [2020] KEELC 2205 (KLR)
The bottom line
#A Kenyan court ruled you cannot force someone to be cross-examined in a judicial review case unless you have very strong, clearly stated reasons.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Order 19 Rule 2 to judicial review
Order 19 does not apply to judicial review proceedings, which are governed by the special procedure in Order 53
Judicial review is a special jurisdiction and procedure; section 3 of the Civil Procedure Act provides that the Act does not limit or affect special jurisdictions or procedures prescribed under other laws. Where proceedings are governed by a special Act, its provisions must be strictly construed and the Civil Procedure Act and Rules do not apply unless expressly provided.
Whether cross-examination should be ordered
The application failed both on requirements (paragraphs not identified) and on principle, as cross-examination is exceptional in judicial review
An application for cross-examination must state clearly the paragraphs of the affidavit on which the deponent is to be cross-examined; that was not done. Further, the dispute before the court concerned the propriety of the NLC's procedure, not ownership of land, so no factual interrogation was warranted.
Nature of the substantive dispute
The judicial review motion concerns procedure and legality of the NLC's decisions, not title validity
The ex-parte applicant seeks certiorari and prohibition on grounds of illegality, excess of jurisdiction, irrationality, arbitrariness and bias. The dispute is about the propriety of the procedure employed by the National Land Commission, fitting squarely within normal judicial review, not an ownership dispute requiring viva voce evidence.
Legal principles established
#- Cross-examination of deponents in judicial review proceedings is exceptional and requires strong grounds
- Order 19 of the Civil Procedure Rules does not apply to judicial review proceedings under Order 53
Court orders
#- 1.The application dated 10/10/2019 is dismissed with costs to the ex-parte applicant only
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; application under Order 19 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others Ex Parte Almer Farm Limited [2020] KEELC 2205 (KLR)", Case Analysis (2020). Judicial Review Notice of Motion (ELC, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2205/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.