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ELCDismissedJudicial Review Notice of Motion (ELC, Kitale)· [2020] KEELC 2205 (KLR)

Republic v National Land Commission & 2 others Ex Parte Almer Farm Limited [2020] KEELC 2205 (KLR)

Environment and Land Court
21 May 2020
2,359 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 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

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determined an application dated 10 October 2019 by the 3rd respondent, under Order 19 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010, seeking an order that Abraham Kiptanui, director of the ex-parte applicant, attend court for cross-examination on his verifying affidavit dated 26 March 2019 and affidavits dated 13 and 20 June 2019. The 3rd respondent contended that the affidavits raised factual issues on ownership of the suit land, contained variances, and may not have been signed by Kiptanui. The ex-parte applicant opposed, arguing that judicial review does not delve into facts, that the paragraphs alleged to raise factual issues were not identified, that cross-examination is exceptional in judicial review, and that Kiptanui was elderly and bedridden. The court held, applying the Althaus and Kuria Mbae line of authority, that Order 19 of the Civil Procedure Rules does not apply to judicial review proceedings, which are governed by the special procedure in Order 53. It further found that the substantive motion concerned the legality of the National Land Commission's decisions of 7 February 2019 and 1 March 2019 - not title validity - and thus fitted squarely within normal judicial review. Cross-examination would be a deviation requiring strong grounds, which were not shown. The application was dismissed with costs to the ex-parte applicant only. Judgment delivered electronically at Nairobi on 21 May 2020.

Key legal issues

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01

Applicability of Order 19 Rule 2 to judicial review

Holding

Order 19 does not apply to judicial review proceedings, which are governed by the special procedure in Order 53

Reasoning

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.

p. 3
02

Whether cross-examination should be ordered

Holding

The application failed both on requirements (paragraphs not identified) and on principle, as cross-examination is exceptional in judicial review

Reasoning

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.

p. 3
03

Nature of the substantive dispute

Holding

The judicial review motion concerns procedure and legality of the NLC's decisions, not title validity

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 10/10/2019 is dismissed with costs to the ex-parte applicant only

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 19 Rule 2
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 53
  • Civil Procedure ActSection 3; preamble
  • Constitution of Kenyanot specified

Cases cited (11)

  • Eln (Main suing through her mother JN -vs- Benard Heinrich Graff and Another
    [2016] eKLR
  • R -vs- Constituency Development Fund Board & Another Ex-parte Robert Iltaramwa Ochale & 5 Others
    [2012] eKLR
  • GGR -vs- HPS
    [2012] eKLR
  • Sanghani Investments Ltd -vs- Office in Charge Nairobi Remand & Allocation Prison
    [2007] 1 EA 35
  • Republic -vs- Kenya Revenue Authority Ex-parte Althaus Management & Consultancy Ltd
    [2015] eKLR
  • Commissioner General, Kenya Revenue Authority through Republic v Silvano Onema Owaki T/A Marenga Filling Station
    [2001] eKLR
  • R. v. Wandsworth JJ., ex p. Read
    [1942] 1 K.B. 281
  • Rep -vs- Ex Parte Karia Miscellaneous 534 of 2003
  • Lawson and Anor -vs- Odhams Press Ltd. and Anor.
    (1948) 2 All ER 717
  • Kuria Mbae vs. The Land Adjudication Officer, Chuka & Another
    Nairobi HCMCA No. 257 of 1983
  • Jotham Mulati Welamondi vs. The Electoral Commission of Kenya
    Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486
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

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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 & 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.