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ELCDismissedELC Judicial Review No. 03 of 2019· [2021] KEELC 3585 (KLR)

Edward Nzioka Kimasia & 3 others v County Director of Land Adjudication & Settlement (Makueni County) & another; Josephat Mwania Kisuna (Interested Party) [2021] KEELC 3585 (KLR)

Environment and Land Court
28 April 2021
2,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Makueni Environment and Land Court dismissed landowners' attempt to overturn a land appeal decision because they couldn't prove the decision-maker considered irrelevant matters or even attached the ruling they wanted quashed.

What this practically means

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Executive summary

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The four Applicants moved the Environment and Land Court at Makueni by Notice of Motion dated 15th July 2019, under Order 53 Rule 3(1) of the Civil Procedure Rules, seeking an order of certiorari to quash the judgment of the Deputy County Commissioner, Kilungu Sub-County, in Land Appeal Case No. 52 of 2013 concerning Plot No. 3758 Wautu Adjudication Section, delivered on 29th April 2019. They contended the Deputy County Commissioner considered extraneous matters outside his powers. The Interested Party and the Respondents opposed, asserting no procedural irregularities and that the Applicants were raising issues of fact unsuitable for judicial review. The court framed a single issue: whether the Applicants demonstrated with precision any irrelevant or extraneous considerations vitiating the decision. It first noted the Applicants' failure to annex the impugned judgment, a mandatory requirement of Order 53 Rule 7(1), which would ordinarily render continuation of the proceedings a nullity, but was cured by the opposing parties annexing the decision. On the merits, the court found due process was accorded: parties called witnesses, cross-examined, and the decision-maker visited the locus. Her consideration of prior adjudication and court proceedings was relevant, not extraneous, and the Applicants identified no specific extraneous matter. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Compliance with Order 53 Rule 7(1) – annexing the impugned decision to a certiorari application

Holding

The Applicants' failure to annex the judgment they sought to quash impaired their case and would render continuation of the proceedings a nullity, though the defect was cured by the Respondents and Interested Party annexing the decision

Reasoning

Order 53 Rule 7(1) mandatorily requires an applicant for certiorari to lodge a copy of the decision sought to be quashed, verified by affidavit, before the hearing of the motion. The Applicants annexed only an invitation letter and the Land Adjudication Committee decision, not the impugned appeal judgment, and gave no reason for the omission. Following Samson Kirerea M'Ruchu, the defect would render continued proceedings a nullity, but the court exercised discretion to proceed since other parties annexed the decision.

p. 2
02

Whether the Deputy County Commissioner took into account extraneous considerations

Holding

No; due process was accorded, and consideration of prior adjudication and court proceedings was relevant, not extraneous; the application was dismissed

Reasoning

While taking irrelevant considerations into account is a ground for judicial review, judicial review concerns the decision-making process, not the merits. The court found the Applicants were allowed to call witnesses and cross-examine, and that the decision-maker's consideration of earlier proceedings and her site visit to ascertain the land's heritage were relevant matters. The Applicants identified no specific extraneous matter, so no arguable case for certiorari was demonstrated.

p. 3

Legal principles established

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  • An applicant for certiorari must lodge a copy of the decision sought to be quashed before the hearing of the motion; failure renders continued proceedings a nullity
  • A court cannot quash a decision whose existence it has not ascertained
  • Taking into account an irrelevant consideration is a ground for judicial review intervention

Court orders

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  1. 1.The Notice of Motion dated 15th July, 2019 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Civil Procedure Rules, 2010Order 53 Rule 7(1)

Cases cited (8)

  • Municipal Council of Mombasa -Vs- Republic & Umoja Construction Ltd
    Civil Appeal No. 185 of 2001
  • Dume Deri Mumbo & 19 others (suing on their behalf and on behalf of Wandarari Clan) -Vs- Cabinet Secretary of Lands, Housing & Urban Development & 6 others
    [2016] eKLR
  • Samson Kirerea M’Ruchu -Vs- Minister for Land & Settlement
    CA 21 of 1999
  • Republic -Vs- Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
  • Republic and others -Vs- Attorney General and another
    [2006] 2 EA 265 (HCK)
  • Municipal Council of Mombasa -Vs- Republic & another
    [2002] eKLR
  • Kenya Revenue Authority & 2 others -Vs- Darasa Investments Limited
    [2018] eKLR
  • Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation
    [1948] 1 KB 223
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules and all other enabling provisions of the Law (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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Edward Nzioka Kimasia & 3 others v County Director of Land Adjudication & Settlement (Makueni County) & another; Josephat Mwania Kisuna (Interested Party) [2021] KEELC 3585 (KLR)", Case Analysis (2021). ELC Judicial Review No. 03 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3585/eng@2021-04-28

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