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ELCDismissedELC Judicial Review No. 9 of 2017 and ELC Judicial Review No. 4 of 2016 (Notices of Motion dated 6th December, 2018 and 26th February, 2019)· [2021] KEELC 3742 (KLR)

Republic v National Land Commission & 2 others Ex parte Ravindra Ratilal Tailor & 2 others (suing as the Trustee of Uasin Gishu Arts Society of Eldoret) & Uasin Gishu Arts Society of Eldoret; C.E.C. Land Housing & Physical Planning, Uasin Gishu County & 4 others (Interested Parties) [2021] KEELC 3742 (KLR)

Environment and Land Court
14 April 2021
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that people claiming land ownership cannot join judicial review cases—they must file their claim in a separate civil suit.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (S. M. Kibunja, J) disposed of two enjoinment applications: a Notice of Motion dated 6th December, 2018 in ELC Judicial Review No. 9 of 2017 and one dated 26th February, 2019 in ELC Judicial Review No. 4 of 2016, by which Joseph Koech, Mark Kuto and D. Langat sought to be enjoined as Interested Parties and granted leave to respond to the substantive judicial review motions concerning land parcel Eldoret Municipality Block 13/22. The applicants claimed ownership through a letter of allotment dated 9th October, 2009, on which they paid Kshs.378,508. The Exparte Applicants (led by Ravindra Ratilal Taylor) opposed, arguing that no relief was sought against the applicants, that Order 53 makes no provision for enjoinment, and that the allotment letter was revoked on 19th January, 2011; the Respondents also opposed by grounds of opposition. The court framed two issues: whether the applicants were proper or necessary parties, and costs. It held that the judicial review proceedings concern the legality of decisions of the National Land Commission and the Uasin Gishu County Land Management Board sought to be quashed by certiorari, not the ownership of the suit land; quashing or upholding the impugned decisions would not determine title. Order 53 Rule 6 does permit a proper person to be heard in opposition, but these applicants were not proper persons; their forum was ordinary civil proceedings, and they had in fact filed Eldoret ELC No. 113 of 2019. The 2013 Constitutional Petitions Rules were held inapplicable. Both applications were dismissed with costs to the Exparte Applicants and Interested Parties.

Key legal issues

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01

Whether the Intended Interested Parties had an identifiable stake warranting enjoinment in the judicial review proceedings

Holding

They were not proper or necessary parties; no relief was sought against them and the proceedings do not determine ownership of the suit land.

Reasoning

The court noted that the substantive motions seek certiorari, prohibition and mandamus against decisions of the National Land Commission and the Uasin Gishu County Land Management Board. Quashing or upholding such decisions would not substitute the court's own determination of ownership. The Intended Interested Parties' real aim was to defend an entitlement claim based on a revoked letter of allotment, which belongs in ordinary civil proceedings or their own suit, Eldoret ELC No. 113 of 2019.

p. 4
02

Whether the 2013 Constitutional Petitions Rules apply to enjoinment in judicial review proceedings

Holding

They do not; the applicable provision is Order 53 Rule 6 of the Civil Procedure Rules, under whose discretion the applicants still failed to qualify.

Reasoning

Counsel for the Intended Interested Parties relied on Rule 2 and 7(2) of the 2013 Constitutional Petitions Rules and Muruatetu on enjoinment principles. The court held that since the matter is not a constitutional petition, those rules are inapplicable. However, Order 53 Rule 6 does permit a proper person desiring to be heard in opposition to be heard. On the facts, the applicants were not proper persons under that rule.

p. 4
03

Costs of the enjoinment applications

Holding

The unsuccessful Intended Interested Parties were ordered to pay costs to the Exparte Applicants and Interested Parties.

Reasoning

Having found no merit in either application, the court exercised its discretion on costs against the applicants, who had been opposed by the Exparte Applicants, while the 1st and 2nd Respondents opposed by grounds of opposition and other Respondents did not actively oppose.

p. 4

Legal principles established

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  • Judicial review proceedings concern the legality of the decision-making process, not the determination of ownership of property; a party claiming ownership must pursue that claim in ordinary civil proceedings.
  • Order 53 Rule 6 of the Civil Procedure Rules gives the court discretion to hear a person who appears to be a proper person to be heard in opposition to a judicial review motion, even if not served.
  • The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 do not apply to judicial review proceedings under Order 53.

Court orders

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  1. 1.The Intended Interested Parties' Notices of Motion dated 6th December, 2018 (ELC JR No. 9 of 2017) and 26th February, 2019 (ELC JR No. 4 of 2016) are dismissed.
  2. 2.Costs of the two applications awarded to the Exparte Applicants and Interested Parties.

Authorities

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Legislation

  • Constitution of KenyaArticle 62; Article 48
  • Civil Procedure RulesOrder 53; Order 53 Rule 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2 and 7(2)
  • Civil Procedure ActSections 1A and 3A
  • Law Reform ActSection 8(1)
  • Land Act No. 6 of 2012Sections 12 and 13
  • Environment & Land Court Act No. 19 of 2011Section 18(a)(vi)
  • Government Land Act Chapter 155Sections 7 and 3(a)(b)(d)

Cases cited (6)

  • Francis Karioki Muruatetu & Another Vs Republic & 5 Others
    Petition No. 15/16 of 2016 eKLR
  • Mai Mahiu Kijabe/Longonot Co. Ltd Vs Ayub Mugo Njoroge & 5 Others
    Civil Suit No. 1672 of 2001 eKLR
  • Catherine Nyambura Vs Director of Public Prosecutions & 3 Others
    [2018] eKLR
  • Mumo Matemy Vs Trusted Society of Human Rights Alliance & 5 Others
    null
  • Nairobi High Court Misc. Application No. 5 of 2004
    null
  • Kensalt Ltd Vs Water Resources Management Authority
    [2018] eKLR
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules, founded on Section 8(1) of the Law Reform Act (Chapter 26, Laws of Kenya)

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 & 2 others Ex parte Ravindra Ratilal Tailor & 2 others (suing as the Trustee of Uasin Gishu Arts Society of Eldoret) & Uasin Gishu Arts Society of Eldoret; C.E.C. Land Housing & Physical Planning, Uasin Gishu County & 4 others (Interested Parties) [2021] KEELC 3742 (KLR)", Case Analysis (2021). ELC Judicial Review No. 9 of 2017 and ELC Judicial Review No. 4 of 2016 (Notices of Motion dated 6th December, 2018 and 26th February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3742/eng@2021-04-14

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