Edward Nzioka Kimasia & 3 others v County Director of Land Adjudication & Settlement (Makueni County) & another; Josephat Mwania Kisuna (Interested Party) [2021] KEELC 3585 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with Order 53 Rule 7(1) – annexing the impugned decision to a certiorari application
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
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.
Whether the Deputy County Commissioner took into account extraneous considerations
No; due process was accorded, and consideration of prior adjudication and court proceedings was relevant, not extraneous; the application was dismissed
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 15th July, 2019 is dismissed
- 2.Each party shall bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miliuntu v Deputy County Commissioner Igembe Central Sub County & another; Ndambuki (Interested Party)[2023] KEELC 17976 (KLR)7 Jun 2023
- Miliuntu v Deputy County Commissioner Igembe Central Sub County & another; Ndambuki (Interested Party)[2023] KEELC 17976 (KLR)7 Jun 2023
Cite this brief
#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.