Republic v Director Land Administration Ministry of Lands Aand Physical Planning & 2 others Ex Parte: Roysa Community Development Society Ltd [2021] KEELC 220 (KLR)
The bottom line
#A community group's bid for land titles through judicial review failed because the dispute had already been decided in earlier court cases.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a registered society suing on behalf of members
The Exparte Applicant has locus standi under the expanded post-2010 constitutional dispensation; the objection is overruled.
The 2010 Constitution broadened standing. Article 22 permits a person acting as a member of, or in the interest of, a group or an association acting in the interest of its members to institute proceedings, and Article 23(3)(f) allows courts to grant orders of judicial review in such proceedings. A members' resolution authorised the officials to file the suit.
Res judicata
The proceedings are res judicata; issues relating to L.R No. 5875/2 were finally determined in prior ELC suits.
Section 7 of the Civil Procedure Act requires five conjunctive elements. The prior suits (Miganga adverse possession case and Kasarani Mall injunction case) concerned the same property and determined competing ownership claims, holding Kasarani Mall Ltd held valid title. The Applicant's remedy lies in appeal or review, not a fresh judicial review application.
Suitability of judicial review for disputed facts
Mandamus cannot issue because the application requires determination of contested ownership facts requiring oral evidence.
Judicial review examines legality, not contested evidence. Ownership of the suit property is disputed between the Applicant's members and the registered proprietor, Kasarani Mall Ltd, whose title under the Land Registration Act is absolute and indefeasible absent proof of fraud. Resolving this requires evidence tested by cross-examination in an ordinary civil suit, and mandamus would condemn an unheard non-party.
Legal principles established
#- Res judicata bars the relitigation of issues over the same suit property that were finally determined by courts of competent jurisdiction; the remedy of an aggrieved party is appeal or review.
- Judicial review is ill equipped to resolve contested issues of fact requiring oral evidence and cross-examination.
- Article 22 and 23 of the Constitution broaden locus standi, allowing associations to sue on behalf of their members, including by way of judicial review.
- A party seeking judicial review must make full disclosure at the leave stage; failure to disclose prior litigation on the subject matter may mean leave ought not to have been granted.
Court orders
#- 1.The application dated 21st May 2021 is dismissed
- 2.Each party to bear its own costs of the Application
- Jurisdiction invoked
- Order 53 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act (judicial review – mandamus)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director Land Administration Ministry of Lands Aand Physical Planning & 2 others Ex Parte: Roysa Community Development Society Ltd [2021] KEELC 220 (KLR)", Case Analysis (2021). Judicial Review Application (Substantive Motion dated 21st May 2021, leave granted on 18th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/220/eng@2021-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.