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ELCStruck OutJudicial Review Notice of Motion dated 11.7.2018· [2021] KEELC 107 (KLR)

Republic v Deputy County Commissioner & 5 others Ex parte John Njati Kirema & another [2021] KEELC 107 (KLR)

Environment and Land Court
15 December 2021
3,015 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 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

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Executive summary

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The exparte applicants, children of the 5th respondent, sought judicial review orders of certiorari to quash the 2nd respondent's decision of 19.6.2018 approving the sale and transfer of L.R Kianjai/Kianjai/2459 from their father to the 6th respondent, and prohibition against interference with their occupation of the land. They claimed the land was ancestral family land held in trust for them, and faulted the 3rd respondent for summarily rejecting their application for a caution and the Land Control Board for approving the transfer without hearing them, contrary to Articles 47 and 50 of the Constitution and the Fair Administrative Action Act. The 1st to 4th respondents filed grounds of opposition contending the impugned decision was not annexed, while the 5th and 6th respondents denied the land was ancestral, the purchaser pleading bona fide purchase on a willing buyer-willing seller basis. The court held that compliance with Order 53 rule 7 is a precondition to certiorari; the applicants neither annexed the impugned decisions and proceedings nor explained the omission, so the court could not quash decisions not before it without descending into speculation. Further, the claims on customary trust, beneficial interest and occupation raised contested factual issues requiring viva voce evidence and cross-examination, which judicial review proceedings cannot accommodate; even if the decisions were quashed, the beneficial interests would still need determination in an ordinary suit. The court struck out the notice of motion with no order as to costs.

Key legal issues

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01

Non-annexation of the decision sought to be quashed

Holding

Failure to annex the decision or proceedings under Order 53 rule 7 rendered the motion for certiorari incompetent

Reasoning

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.

p. 3
02

Suitability of judicial review for beneficial/customary trust claims

Holding

Claims of ancestral land, customary trust and beneficial interest require viva voce evidence and must be pursued in an ordinary suit

Reasoning

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.

p. 4
03

Burden of proof

Holding

The exparte applicants bore the burden of proving the motion on a balance of probabilities

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The notice of motion is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 50, 159(2)
  • Land Registration ActSections 71-75 (including subsection (4))
  • Land Control ActSections 6(1), 9
  • Fair Administrative Action ActSection 6
  • Evidence ActSections 107 and 109
  • Civil Procedure RulesOrder 53 Rules 7 and 7(1)

Cases cited (13)

  • Isack M'Inanga Kieba –vs- Isaya Theuri M'Linturi & Another
    [2018] eKLR
  • Wamukota –vs- Donati
    [1987] KLR 280
  • Republic –vs- Chairman Manyatta Divisional Land Control Board
    [1999] eKLR
  • Samson Kirere M'Ruchiu –vs- Minister for Land & Settlement
    C.A 21 of 1999
  • Musa Kingori Gaita –vs- Kenya Wildlife Service
    [2006] eKLR
  • Republic –vs- Ruiru District Land Disputes Tribunal & Another Exparte Lucia Waithira Muiruri & Another
    [2014] eKLR
  • Republic –vs- Mwangi S. Kaimenyi Exparte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
  • IEBC -vs- NASA Kenya & 6 Others
    [2017] eKLR
  • Lempaa Suyianka & 5 Others –vs- Nelson Andayi Havi & 14 Others, Caucus of LSK Branch Chairpersons (Interested Party)
    [2021] eKLR
  • Republic –vs- County Government of Tana River & 2 Others
    [2018] eKLR
  • Saghani Investments Ltd –vs- Officer in Charge of Nairobi Remand Prison
    [2009] eKLR
  • Ahumed Siad Mohammed –vs- Municipal Council of Garissa & Another
    [2014] eKLR
  • Republic –vs- Exparte Karin
    Misc. Application No. 534/03
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

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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 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.