Republic v Kisumu County Land Registrar, Kisumu County Land Surveyor & Walter Edwin Ominde; Rose C.A.Nyaseme & Frankline O. Nyaseme (Interested Parties) (Judicial Review 4 of 2020) (21 May 2021) (Review) [2021] KEELC 3175 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Enjoinment of interested parties in judicial review proceedings
The intended interested parties are directly affected parties with a recognizable stake and should have been enjoined from the outset; their application for leave is granted.
Comparing the pleadings in the judicial review suit and Kisumu ELC No. 25 of 2019, the court found overlapping subject matter concerning parcel Kisumu/Municipality/Block 11/223 and identical respondents. Applying Order 53 rule 3(2) and Black's Law Dictionary's definition of an interested party, the applicants have a stake and standing. The ex parte applicant's own assertion that he served them confirmed their interested-party status.
Service of the notice of motion under Order 53 rule 3(3)
A stamped copy of an application on an advocate's stamp does not amount to proper service; no affidavit of service was filed, breaching the mandatory rule and natural justice, justifying setting aside the ex parte orders of 2nd September 2020.
Order 53 rule 3(3) requires an affidavit of service to be filed before the motion is heard. The ex parte applicant filed none, relying only on a stamped copy. Relying on James Toroitich Kisa & others v City Council of Nairobi, the rule is mandatory to ensure no party is condemned unheard, and on Meme v Republic, widest participation should be allowed in public law matters.
Court's power to refer advocates to the Advocates Disciplinary Committee
The court lacks power to lodge complaints with the Advocates Complaints Commission; sections 4 and 5 of the Law Society of Kenya Act vest no such power in the court.
The court examined sections 4 and 5 of the Law Society of Kenya Act and sections 55 and 56 of the Advocates Act cited by the applicants. It found no provision empowering the court to lodge complaints; section 53(4) permits complaints from any party, but the court is not an aggrieved party, and the interested party holds the facts and evidence and may lodge the complaint itself.
Legal principles established
#- An intended interested party with a recognizable stake in the subject matter of judicial review proceedings ought to be enjoined and served; failure to file the affidavit of service required by Order 53 rule 3(3) renders service improper and any ex parte orders liable to be set aside.
- The court has no power of its own motion to refer an advocate to the Advocates Complaints Commission; the aggrieved party bearing the facts must lodge the complaint.
Court orders
#- 1.Leave granted to the applicants (Rose C.A. Nyaseme and Frankline O. Nyaseme) to be enjoined in the suit as interested parties
- 2.The ex parte orders issued on 2nd September 2020 in favour of the ex parte applicant set aside
- 3.The prayer to refer Mr Andrew Ombwayo Advocate to the Advocates' Disciplinary Committee not granted
- 4.Costs of the application to the applicants
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court under Order 53 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kisumu County Land Registrar, Kisumu County Land Surveyor & Walter Edwin Ominde; Rose C.A.Nyaseme & Frankline O. Nyaseme (Interested Parties) (Judicial Review 4 of 2020) (21 May 2021) (Review) [2021] KEELC 3175 (KLR)", Case Analysis (2021). Judicial Review No. 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3175/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.