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ELCDismissedJudicial Review Application (Notice of Motion dated 4th November 2019, arising from Exparte Chamber Summons dated 17th October 2019)· [2021] KEELC 404 (KLR)

Republic v Deputy County Commissioner, Baringo Central & 2 others Ex parte Moses Kiprono Kaplawat; Cheboiwo Rotich & 6 others (Interested Parties) [2021] KEELC 404 (KLR)

Environment and Land Court
15 December 2021
2,931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to overturn a land adjudication appeal decision, confirming judicial review challenges process, not outcomes.

What this practically means

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Executive summary

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The Exparte Applicant, Moses Kiprono Kaplawat, sought certiorari to quash the judgment of the Deputy County Commissioner, Baringo Central, in Minister's Appeal Case No. 256 of 2009 concerning parcels in Salawa Adjudication Section, and prohibition against the issuance of title deeds to the Interested Parties. He alleged that the 1st Respondent erroneously consolidated seven distinct appeals and heard them on a single day, denied him a fair hearing by cross-examining witnesses first and by failing to let him cross-examine the 5th Interested Party, relied on extraneous matters, and made an award to a deceased person, contrary to Article 47 of the Constitution and fair administrative action principles. The Interested Parties and the Respondents opposed, contending that the appeals were heard separately on the Applicant's own request for convenience, that natural justice was observed, and that the motion was in substance a merits challenge to the Minister's decision, offending Section 29 of the Land Adjudication Act and outside the scope of judicial review. The court framed five issues. It held that Order 53 Rule 3 does not require a supporting affidavit, so the application was not defective. On the record, all parties and witnesses were heard and cross-examined one at a time, and no prejudice arose from consolidation or the order of cross-examination. The apparent award to the deceased 3rd Interested Party was in reality a dismissal of the appeals, with estate matters reserved to the Succession Court. The court held that judicial review concerns process, not merits, and the Applicant failed to show any flaw in the process. The notice of motion was dismissed with costs to the 1st, 2nd and 4th to 7th Interested Parties.

Key legal issues

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01

Form of supporting affidavit in judicial review

Holding

The application was not defective; Order 53 Rule 3 does not require a supporting affidavit for the substantive motion

Reasoning

The court observed that no supporting affidavit was even filed with the notice of motion, and that under Order 53 Rules 3 and 4 only the statement accompanying the application for leave matters; any affidavit filed in support is unnecessary under the rule.

p. 3
02

Fair hearing before the 1st Respondent

Holding

No breach of natural justice established; all parties and witnesses were heard and cross-examined

Reasoning

The record showed the Applicant, the Interested Parties and their witnesses testified one at a time and were cross-examined. Although the 1st Respondent cross-examined first rather than the opposing parties, all parties were subjected to the same order and no prejudice was shown.

p. 4
03

Consolidation of the appeals

Holding

Consolidation and hearing on a single day did not render the proceedings chaotic or unfair

Reasoning

Though the seven appeals were consolidated and heard on one day, testimonies were taken one at a time with cross-examination, so the Applicant was heard adequately. The court added that consolidation is a common phenomenon serving expeditious disposal under sections 1A and 1B of the Civil Procedure Act.

p. 4
04

Alleged award to a deceased person

Holding

The decision merely dismissed the appeals and did not amount to an award to a deceased party; the estate's distribution is a matter for the Succession Court

Reasoning

The proceedings recorded the 3rd Interested Party as deceased, but the decision simply dismissed the appeals. Any distribution of benefits accruing to his estate would be guided by the Law of Succession Act, Cap 160.

p. 4
05

Merits versus process in judicial review

Holding

The Applicant's dissatisfaction was with the outcome, not the process; the application failed

Reasoning

The court held that its supervisory jurisdiction extends only to the decision-making process. The Applicant's real grievance was the loss of the appeals, which cannot be re-litigated in judicial review, particularly where the motion offends Section 29 of the Land Adjudication Act as alleged by the Respondents.

p. 4

Legal principles established

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  • Order 53 Rule 3 of the Civil Procedure Rules does not require the substantive judicial review application to be supported by an affidavit; any affidavit filed in support is unnecessary
  • In judicial review the High Court's jurisdiction is limited to the process of decision-making, not the merits of the decision
  • Consolidation of appeals touching on the same subject matter does not of itself vitiate a hearing where parties are heard and cross-examined one at a time

Court orders

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  1. 1.The Applicant's notice of motion dated 4th November 2019 is dismissed.
  2. 2.Costs awarded to the 1st, 2nd, 4th to 7th Interested Parties.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1-3), 4(1-3)
  • Law Reform ActSections 8-9
  • Constitution of KenyaArticle 47
  • Fair Administrative Actions Actnot specified
  • Land Adjudication ActSection 25(C); Section 29
  • Law of Succession ActChapter 160, Laws of Kenya
  • Civil Procedure ActSections 1A, 1B and 27

Cases cited (1)

  • Republic v National Employment Authority & 3 Others, Ex-Parte Middle East Consultancy Services Limited
    [2018] eKLR
Jurisdiction invoked
Order 53 Rules 3 and 4 of the Civil Procedure Rules; sections 8 and 9 of the Law Reform Act (judicial review jurisdiction of the High Court/ELC)

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, Baringo Central & 2 others Ex parte Moses Kiprono Kaplawat; Cheboiwo Rotich & 6 others (Interested Parties) [2021] KEELC 404 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 4th November 2019, arising from Exparte Chamber Summons dated 17th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/404/eng@2021-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.