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ELCDismissedNairobi Judicial Review Misc. Application No. 66 of 2020· [2021] KEELC 3443 (KLR)

Republic v Chief Land Registrar Ex parte Ashok Doshi & another [2021] KEELC 3443 (KLR)

High Court of Kenya
18 February 2021
EOE.O. Obaga
1,933 words in judgment
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The bottom line

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Kenya's High Court ruled it cannot review its own judicial review orders - if you lose, your only option is appealing to the Court of Appeal.

What this practically means

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Executive summary

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This judgment of the High Court of Kenya at Nairobi, delivered by E.O. Obaga, J on 18th February 2021, resolved a preliminary objection in a judicial review application (Nairobi Judicial Review Misc. Application No. 66 of 2020) concerning LR No.209/3850 IR No. 56396 in Nairobi. The property had been allotted to Green View Lodge Limited in 1986, later sold to Magnum Properties Limited and then to the Ex-Parte Applicants in 2018. After Lady Justice Gitumbi ordered Green View Lodge Limited to deposit security for costs in ELC 559 of 2011, Lady Justice Komingoi found the suit stood dismissed, caveats were removed and the property registered in the Ex-Parte Applicants' names. When the Registrar cancelled entries on the title in February 2020, the Ex-Parte Applicants filed Judicial Review Misc. Application No. 46 of 2020 in Nairobi, sought a review of Justice Eboso's orders, then filed a similar application in Mombasa without disclosure; the Nairobi applications were dismissed for non-attendance on 17th September 2020. The Respondent's preliminary objection argued the court lacked jurisdiction under sections 8(3) and (5) of the Law Reform Act and that the fresh proceedings were an abuse of process. Relying on Republic v United Insurance Co Ltd Ex-Parte Kasamani and Biren Amritlal Shah v Republic, the court held it lacked jurisdiction to disturb the final dismissal orders and that the Mombasa filing constituted forum shopping and abuse of process. The preliminary objection was upheld, both applications were dismissed with costs to the Respondent and interested party.

Key legal issues

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01

Jurisdiction of the High Court to review or set aside its own judicial review orders

Holding

The court has no jurisdiction under section 8(3) and (5) of the Law Reform Act to stay, review or set aside its orders; the only remedy is an appeal to the Court of Appeal.

Reasoning

The Respondent relied on Republic v United Insurance Co Ltd Ex-Parte C. Lutta Kasamani and Biren Amritlal Shah v Republic, where courts held that judicial review courts lack power to review their own orders. The court found a final order had been made when leave was refused ex-parte, the review application was dismissed for non-attendance, and such dismissal orders, whether from leave or substantive applications, are appealable rather than reviewable. It therefore lacked jurisdiction over the applications.

p. 2
02

Whether filing a similar application in Mombasa while the Nairobi application was pending was abuse of process

Holding

Yes - it constituted forum shopping and abuse of the court process, warranting dismissal of the applications.

Reasoning

The Ex-parte Applicants filed the Mombasa application on 22nd June 2020 while the Nairobi application was still pending, and did not disclose it. They only purported to withdraw the Nairobi application after obtaining leave and interim stay in Mombasa. Their claimed email withdrawal and non-disclosure excuses did not cure the abuse. The court upheld the preliminary objection and dismissed both applications with costs.

p. 3

Legal principles established

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  • Under section 8(3) and (5) of the Law Reform Act, a judicial review court has no jurisdiction to stay, review or set aside any order it has made; an aggrieved party must appeal to the Court of Appeal
  • An order of dismissal arising from an application for leave in judicial review proceedings, not just from a substantive motion, is appealable and final
  • Filing a substantially similar application in a second court while a similar application is pending, without disclosing it, is forum shopping and an abuse of the process of the court

Court orders

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  1. 1.Upheld the preliminary objection by the Respondent
  2. 2.Dismissed the Ex-parte Applicants' application dated 13th July 2020
  3. 3.Dismissed the Ex-parte Applicants' application dated 1st August 2020
  4. 4.Costs of the applications awarded to the Respondent and the interested party

Authorities

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Legislation

  • Law Reform Act (Cap 26)Section 8(3) and 8(5)
  • Land Registration ActSection 79(1) and (2)

Cases cited (2)

  • Republic Vs United Insurance Company Limited Ex-Parte C. Lutta Kasamani t/a Kasamani & Co. Advocates
    unreported, Kisumu
  • Biren Amritlal Shah & Another Vs Republic & 3 Others
    Civil Appeal No. 186 of 2004
Jurisdiction invoked
Section 8 of the Law Reform Act (Cap 26), orders of judicial review

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 Chief Land Registrar Ex parte Ashok Doshi & another [2021] KEELC 3443 (KLR)", Case Analysis (2021). Nairobi Judicial Review Misc. Application No. 66 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3443/eng@2021-02-18

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