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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 10th June 2019; Chamber Summons dated 17th April 2019)· [2021] KEELC 1875 (KLR)

Republic v National Land Commission & 3 others Ex Parte Wazazi Farmers Company Limited; Karati Farm & 2 others (Interested Parties) [2021] KEELC 1875 (KLR)

High Court of Kenya
30 September 2021
3,081 words in judgment
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The bottom line

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The High Court dismissed Karati Farm's challenge to the revocation of its land title because it failed to attach the actual NLC decision to its court application.

What this practically means

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Executive summary

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The ex parte applicant, registered proprietor of L.R. No. 5211/2 since 3rd March 2000 following allocation by the Settlement Fund Trustees, moved the court by Notice of Motion dated 10th June 2019 seeking certiorari to quash the 1st respondent's decision published in Kenya Gazette Notice No. 1716 of 22nd February 2019 revoking the title to L.R. No. 5211, mandamus compelling reinstatement as owner, and prohibition restraining the 3rd respondent from executing that decision. It complained it was condemned unheard, in breach of Articles 47 and 50 of the Constitution and Section 14 of the National Land Commission Act. The 2nd, 3rd and 4th respondents opposed, arguing the applicant failed to annex the decision sought to be quashed and that the gazette notice was mere communication of the decision. The 3rd interested party (EACC) maintained the land was public land set aside in 1904 as a livestock experimental farm and rightly reverted to KALRO. The court distilled two issues: whether the threshold for judicial review orders was met and whether the orders should issue. Applying Order 53 Rule 7(1) of the Civil Procedure Rules, it found the applicant failed to annex the actual decision or account for the omission by affidavit evidence; the gazette notice was not the decision and could not demonstrate whether a fair hearing occurred. The prerogative prayers being interdependent, all failed. The Notice of Motion was dismissed with costs to the 2nd, 3rd and 4th respondents and the 3rd interested party, with no costs to the 1st respondent and remaining interested parties.

Key legal issues

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01

Compliance with Order 53 Rule 7(1) in applications for certiorari

Holding

The ex parte applicant did not annex the decision sought to be quashed nor account for the omission in affidavit evidence, which is fatal

Reasoning

The court read Order 53 Rule 7(1) as mandatory. The gazette notice merely communicated that a decision had been made and directed parties to collect the full determination from the Legal Directorate Registry. Explanations offered in submissions without affidavit evidence were unacceptable. To verify allegations of denial of fair hearing, the actual decision and proceedings were necessary, and the obligation to place them before the court lay on the applicant.

p. 3
02

Interdependence of certiorari, mandamus and prohibition

Holding

Mandamus and prohibition could not issue because the foundational certiorari relief failed

Reasoning

The court held that the three prayers were 'joined at the hip': mandamus commands performance of a public duty and prohibition forbids action in excess of jurisdiction, but both presuppose that the underlying decision is quashed. Since certiorari failed on procedural grounds, the ancillary reliefs could not stand.

p. 4
03

Scope of judicial review jurisdiction

Holding

The court confines itself to the decision-making process and not the merits

Reasoning

Relying on Municipal Council of Mombasa v Republic, the court reiterated that judicial review examines process - jurisdiction, hearing, relevant considerations - not the sufficiency of evidence or the correctness of the decision. The court therefore declined to adjudicate the rival claims of ownership over the suit land.

p. 3

Legal principles established

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  • Failure to lodge a copy of the decision sought to be quashed, or to account for the failure, is fatal to an application for certiorari under Order 53 Rule 7(1)
  • A gazette notice communicating a decision is not the decision itself and cannot substitute the decision for purposes of an application for certiorari
  • Judicial review is concerned with the decision-making process, not the merits of the decision

Court orders

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  1. 1.Notice of Motion dated 10th June 2019 is dismissed
  2. 2.Costs to the 2nd, 3rd and 4th respondents and to the 3rd interested party
  3. 3.No costs awarded to the 1st respondent and the rest of the interested parties

Authorities

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Legislation

  • Constitution of KenyaArticles 10(2)(d), 47, 47(2), 50, 50(1), 67, 68(c)(v), 73(1)
  • National Land Commission ActSections 14(1), 14(8)
  • Fair Administrative Action ActSection 4
  • Land ActSections 131, 151
  • Civil Procedure RulesOrder 53 Rules 1, 2, 3, 4, 7(1)

Cases cited (12)

  • Diana Kethi Kilonzo & Another v IEBC & 2 Others
    Petition No. 359 of 2013
  • Kenya Revenue Authority v Menginya Salim Murgani
    Civil Appeal No. 108 of 2009
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Republic v Land Registrar Taita Taveta District & another
    [2015] eKLR
  • Republic v Commissioner of Lands and another ex parte Lima Ltd
    Eld. HC Judicial Review case no. 10 of 2008
  • Republic v Senior Registrar of Titles, Mombasa and 2 others ex parte Conmen Ltd
    Mbsa. HC Misc Civil Appeal No. 70 of 2010
  • Regina v Monopolies and Mergers Commission and Another ex parte Argyle Group, Plc
    [1986] 2 ALL ER 257
  • East African Cables Limited v The Public Procurement Complaints Review & Appeals Board and Kenya Power and Lighting Company Limited
    Civil Application No. 109 of 2007 (unreported)
  • Suchan Investment Limited v Ministry of National Heritage and Culture & 3 others
    [2016] eKLR
  • Republic v National Land Commission Ex parte Krystalline Salt Limited
    [2015] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001; also cited as [2002] eKLR
  • Sceneries Limited v National Land Commission
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; review of grants of public land under Article 68(c)(v) of the Constitution and Section 14 of the National Land Commission Act

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 & 3 others Ex Parte Wazazi Farmers Company Limited; Karati Farm & 2 others (Interested Parties) [2021] KEELC 1875 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Notice of Motion dated 10th June 2019; Chamber Summons dated 17th April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1875/eng@2021-09-30

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