Republic v Deputy County Commissioner & 5 others Ex parte John Njati Kirema & another [2021] KEELC 107 (KLR)
The bottom line
#A Kenyan court struck out a family's bid to block their father's land sale because they filed it in the wrong forum and attached no evidence of the decision being challenged.
What this practically means
#Executive summary
#Key legal issues
#Non-annexation of the decision sought to be quashed
Failure to annex the decision or proceedings under Order 53 rule 7 rendered the motion for certiorari incompetent
Order 53 rule 7 requires an applicant to lodge a copy of the decision or record before the hearing. The applicants neither annexed the Land Control Board consent decision nor the proceedings on the rejected caution, nor showed they were denied access despite their right to information under the Fair Administrative Action Act and the Constitution. The court therefore could not quash decisions it could not see.
Suitability of judicial review for beneficial/customary trust claims
Claims of ancestral land, customary trust and beneficial interest require viva voce evidence and must be pursued in an ordinary suit
The applicants' claims resting on the Kiebia customary trust principles raised contested factual questions of occupation, burial and intergenerational holding. Such issues cannot be resolved on affidavit evidence alone; even if the impugned decisions were quashed, the beneficial interests would still require determination in an ordinary suit.
Burden of proof
The exparte applicants bore the burden of proving the motion on a balance of probabilities
Despite the 1st to 4th respondents not filing replying affidavits, the applicants could not merely rely on alleged admissions; they had to prove their case within the four corners of the law as to both procedure and substance.
Legal principles established
#- Compliance with Order 53 rule 7 - lodging a copy of the decision or record sought to be quashed - is a precondition to an order of certiorari, whose failure renders the motion incompetent
- A court cannot quash a non-existent decision; to do so would be speculation
- Questions of land ownership, customary trust and beneficial occupation require viva voce evidence and cannot be resolved in judicial review proceedings
- The burden of proof in judicial review applications lies on the exparte applicant on a balance of probabilities
Court orders
#- 1.The notice of motion is struck out
- 2.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, post-2010 Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commissioner & 5 others Ex parte John Njati Kirema & another [2021] KEELC 107 (KLR)", Case Analysis (2021). Judicial Review Notice of Motion dated 11.7.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/107/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.